Liberty Fund Books

Description

"Local government in colonial America was the seedbed of American constitutionalism." So begins the introductory essay to this landmark collection of eighty documents created by the American colonists—and not English officials—that are the genesis of American fundamental law and constitutionalism. Most of these documents, commencing with the Agreement of the Settlers at Exeter in New Hampshire, July 5, 1639, and concluding with Joseph Galloway's Plan of Union, 1774—"the immediate precursor to the Articles of Confederation"—have never before been accessible to the general reader or available in a single volume. As Professor Lutz points out, the documents are chosen to make possible "a careful examination of [the American] people's attempt at self-interpretation." All of the principal colonial documents are included, as are all documents attempting to unite the colonies, beginning with the New England Confederation of 1643. Bicameralism, popular sovereignty, the separation of powers, checks and balances, limited government, and religious freedom—in sum, the hallmarks of American constitutionalism—were first presented to the world in these writings.

Donald S. Lutz is Professor of Political Science at the University of Houston.

Table of Contents

Preface xv

Introductory Essay xx

New Hampshire
Chapter 1
Agreement of the Settlers at Exeter in New Hampshire, July 5, 1639 3
The covenant that created Exeter’s first town government.
Chapter 2
General Laws and Liberties of New Hampshire, March 16, 1680 5
An apparent legal code for the province of New Hampshire that also lays out the government’s institutions and powers.

Massachusetts
Chapter 3
Agreement Between the Settlers at New Plymouth (The Mayflower Compact), November 11, 1620 31
The oldest and most famous colonial political covenant.
Chapter 4
Plymouth Oath of Allegiance and Fidelity, 1625 33
The oldest surviving citizenship oath—designed to bring post-1620 arrivals into the Mayflower Compact agreement.
Chapter 5
The Salem Covenant of 1629 35
Another citizenship oath, but one that functioned for several years as the only basis for town government.
Chapter 6
Agreement of the Massachusetts Bay Company at Cambridge, England, August 26, 1629 36
An equivalent to the Mayflower Compact but written by the colonists in England before they set sail.
Chapter 7
The Watertown Covenant of July 30, 1630 38
Strictly speaking a church covenant, it is also a political covenant because the settlers were establishing a theocracy.
Chapter 8
Massachusetts Election Agreement, May 18, 1631 40
The oldest colonial provision for a formal electoral process.
Chapter 9
The Oath of a Freeman, or of a Man to Be Made Free, 1631 41
Until 1631 almost all freemen had been politically bound by the church covenant. This oath covered nonchurch members.
Chapter 10
The Massachusetts Agreement on the Legislature, May 9, 1632 43
The first formal specification of Massachusetts political institutions and, although brief, still a protoconstitution.
Chapter 11
Cambridge Agreement, December 24, 1632 45
Town meetings predated this document, but it is the oldest surviving agreement formally establishing the institution.
Chapter 12
Dorchester Agreement, October 8, 1633 46
Establishes a town meeting and is the oldest document to create an elected council to run government between meetings.
Chapter 13
Cambridge Agreement on a Town Council, February 3, 1634 48
An ordinance passed by the town meeting creating a town council.
Chapter 14
Massachusetts Agreement on the Legislature, May 14, 1634 50
A revision of, and enlargement upon, The Massachusetts Agreement on the Legislature [10], which looked like a constitution and essentially functioned as one.
Chapter 15
The Oath of a Freeman, May 14, 1634 52
Replacement for The Oath of a Freeman [9], which reflects an evolving sense of citizenship by not requiring church membership.
Chapter 16
Salem Oath for Residents, April 1, 1634 54
An oath for noncitizen residents.
Chapter 17
Watertown Agreement on Civil Officers, August 23, 1634 56
Ordinance establishing the town’s first civil offices.
Chapter 18
The Enlarged Salem Covenant of 1636 57
Much longer than the document it replaces, The Salem Covenant of 1629 [5], this covenant dwells on the values and commitments held in common.
Chapter 19
Plymouth Agreement, November 15, 1636 60
A brief, powerful statement of popular sovereignty—inserted later into the Pilgrim Code of Law [20].
Chapter 20
Pilgrim Code of Law, November 15, 1636 61
Not really a code of law but a political covenant/compact that looks like and serves as a true constitution.
Chapter 21
Dedham Covenant, 1636 68
The agreement that established Dedham’s town government.
Chapter 22
The Massachusetts Body of Liberties, December 1641 70
Important code of law that contains most of the rights in the U.S. Bill of Rights, at least eight of which originate here.
Chapter 23
The Combination of the Inhabitants upon the Piscataqua River for Government, October 22, 1641 88
A political compact resting town government on popular sovereignty.
Chapter 24
Massachusetts Bicameral Ordinance, March 7, 1644 90
The first explicit creation of a bicameral legislature.
Chapter 25
Massachusetts Ordinance on the Legislature, November 13, 1644 92
An ordinance altering the size and mode of electing the legislature.
Chapter 26
The Laws and Liberties of Massachusetts, 1647 95
A codification of earlier laws, this organic act also functioned as a constitution for the colony.
Chapter 27
Massachusetts Ordinance on Legislative Procedure, October 18, 1648 136
The earliest formal specification of internal legislative procedures in the colonies.
Chapter 28
Towns of Wells, Gorgiana, and Piscataqua Form an Independent Government, July 1649 139
Three towns in an area claimed by Massachusetts later to become Maine use a compact to create a joint government.
Chapter 29
The Cambridge Agreement of October 4, 1652 141
The Cambridge town meeting lays out the basic values and principles that are to guide Cambridge’s elected representatives.
Chapter 30
Puritan Laws and Liberties, September 29, 1658 143
A revision of the Pilgrim Code of Law [20] and thus, in effect, an amending of the constitution of the Plymouth Colony.
Chapter 31
An Act of the General Court, June 10, 1661 158
The basic principles of Massachusetts government and also an attempt to define the relationship between colony and king.

Rhode Island
Chapter 32
Providence Agreement, August 20, 1637 161
A brief political compact resting on popular sovereignty, and the earliest colonial attempt to separate church and state.
Chapter 33
Government of Pocasset, March 7, 1638 163
The political covenant that established the Pocasset town government.
Chapter 34
Newport Agreement, April 28, 1639 165
A brief, general compact establishing town government on the basis of popular sovereignty.
Chapter 35
The Government of Portsmouth, April 30, 1639 166
An unusual foundation document in that town government is grounded on an implicit civil covenant.
Chapter 36
Plantation Agreement at Providence, August 27, 1640 168
A compact written and adopted by representatives specifically elected to design a system of government by arbitration.
Chapter 37
Organization of the Government of Rhode Island, March 16–19, 1642 172
A compact that explicitly establishes a “Democracie,” or “Popular Government,” for the combined towns of Rhode Island.
Chapter 38
Warwick Agreement, August 8, 1647 176
The representatives of Warwick establish town government on popular approval of a civil covenant sanctioned by the king.
Chapter 39
Acts and Orders of 1647 178
This code of law also contains the institutional description that allows it to function as a constitution for the colony.
Chapter 40
Charter of Providence, March 14, 1649 204
Providence is granted a charter for its government by the colony government at the request of the freemen.
Chapter 41
General Assembly of Rhode Island Is Divided into Two Houses, March 27, 1666 207
The colony’s legislature amends the Acts and Orders of 1647 to divide itself into two separate houses connecticut [39].
Chapter 42
Plantation Covenant at Quinnipiack, April 1638 209
An interim agreement which, after fourteen months, was replaced by the New Haven Fundamentals [50].
Chapter 43
Fundamental Orders of Connecticut, January 14, 1639 210
A constitution that defined Connecticut’s political institutions as both a colony and a state until 1816.
Chapter 44
Guilford Covenant, June 1, 1639 216
Written aboard ship, this covenant forms a people who agree to later create a government (see The Government of Guilford [49]).
Chapter 45
Structure of Town Governments, October 10, 1639 217
A set of amendments that address the status of the Fundamental Orders of Connecticut [43] as a federal system.
Chapter 46
Fundamental Articles of New Haven, June 4–14, 1639 221
A summary of basic political principles, with the discussion surrounding its adoption that reveals underlying reasoning.
Chapter 47
Connecticut Oath of Fidelity, 1640 227
A citizenship oath that brought those who arrived after 1639 into the 1639 founding compact—the Fundamental Orders of Connecticut [43].
Chapter 48
Capitall Lawes of Connecticut, Established by the Generall Court the First of December, 1642 229
An ordinance that greatly reduces the number of reasons, compared with English common law, for using capital punishment.
Chapter 49
The Government of Guilford, June 19, 1643 232
The detailed political covenant these colonists had agreed to establish in the Guilford Covenant [44].
Chapter 50
New Haven Fundamentals, October 27, 1643 235
The Constitution of New Haven that guided the colony as a federation of towns until it united with Connecticut in 1662.
Chapter 51
Majority Vote of Deputies and Magistrates Required for the Passage of Laws in Connecticut, February 5, 1645 239
An amendment to the Fundamental Orders of Connecticut [43] clarifying the bicameral relationship.
Chapter 52
Connecticut Code of Laws, 1650 241
This code serves as a bill of rights and as part of Connecticut’s colonial constitution.
Chapter 53
Preface to the General Laws and Liberties of Connecticut Colony Revised and Published by Order of the General Court Held at Hartford in October 1672 250
Designed to replace the code of laws passed before New Haven joined Connecticut (see Connecticut Code of Laws [52]), the preface shows that the code is considered to be part of the foundation covenant.
Chapter 54
Division of the Connecticut General Assembly into Two Houses, October 13, 1698 253
A constitutional ordinance that officially established the bicameralism that had been implicit but imperfectly operative since 1639.

New York
Chapter 55
A Letter from Governor Richard Nicolls to the Inhabitants of Long Island, February 1665 254
The order that established a representative legislature in New York.
Chapter 56
Charter of Liberties and Privileges, October 30, 1683 256
A constitution and bill of rights adopted by the legislature.

New Jersey
Chapter 57
Fundamentals of West New Jersey, 1681 263
A constitution adopted by the New Jersey legislature.

Pennsylvania
Chapter 58
Concessions to the Province of Pennsylvania, 1681 266
An agreement that established the terms of settlement for Pennsylvania.
Chapter 59
Charter of Liberties and Frame of Government of the Province of Pennsylvania in America, May 5, 1682 271
The first Pennsylvania constitution, including a bill of rights, with a preface laying out the principles underlying it.
Chapter 60
An Act for Freedom of Conscience, December 7, 1682 287
Establishes freedom of conscience for all those who profess a minimal belief in God.
Chapter 61
Pennsylvania Charter of Liberties, 1701 290
The Frame of Government (constitution) that replaced the 1696 frame and defined Pennsylvania government until 1776.
Maryland
Chapter 62
Orders Devised and Published by the House of Assembly to be Observed During the Assembly, February 25, 1638 297
Procedural rules governing the deliberative process in the legislature.
Chapter 63
Act for Establishing the House of Assembly and the Laws to Be Made Therein, 1638 299
Political compact that formally established the Maryland legislature.
Chapter 64
An Act for Church Liberties, 1638 302
One of the earliest statements on religious freedom, this compact extended that freedom to Catholics in Maryland.
Chapter 65
An Act for Swearing Allegeance, 1638 303
A typical oath confirming English citizenship that together with the oath of a local political covenant expresses a dual citizenship in a de facto federal structure.
Chapter 66
An Act What Persons Shall Be Called to Every General Assembly and an Act Concerning the Calling of General Assemblies, 1638 305
A temporary constitution that grounds political institutions on popular sovereignty—proposed by the Lord Proprietary and approved by the freemen gathered in a General Assembly.
Chapter 67
An Act for the Liberties of the People, 1638 308
A brief, temporary bill of rights.
Chapter 68
Maryland Toleration Act, April 21, 1649 309
Established the broadest definition of religious freedom in seventeenth-century colonial America until the establishment of Pennsylvania.

Virginia
Chapter 69
Articles, Laws, and Orders, Divine, Politic, and Martial for the Colony in Virginia, 1610–1611 314
Based on martial law rather than on consent and not in any sense covenantal, the first colonial code of law reflects the importance of religion to Virginia political culture.
Chapter 70
Laws Enacted by the First General Assembly of Virginia, August 2–4, 1619 327
The first colonial political compact of any type, this code of law is also the first passed by a representative body.
Chapter 71
Constitution for the Council and Assembly in Virginia, July 24, 1621 336
Formally establishes a bicameral legislature for Virginia.
Chapter 72
Laws and Orders Concluded by the Virginia General Assembly, March 5, 1624 339
A major amendment to, and update of, Laws Enacted by the First General Assembly [70].
North Carolina
Chapter 73
Act Relating to the Biennial and Other Assemblies and Regulating Elections and Members in North Carolina, 1715 345
Formalizes the legislature and the electoral process for selecting representatives.
South Carolina
Chapter 74
Act to Ascertain the Manner and Form of Electing Members to Represent the Province, 1721 350
A legislative act that defines the basis for representation in South Carolina and lays out a fair electoral process.

Georgia
Chapter 75
Act to Ascertain the Manner and Form of Electing Members to Represent the Inhabitants of This Province in the Commons House of Assembly, June 9, 1761 359
The first formal definition of the electoral process underlying representative government in Georgia.

Confederations
Chapter 76
The New England Confederation, 1643 365
A true confederation and the first attempt to unite several colonies created by different charters.
Chapter 77
The Albany Plan of Union, 1754 370
Although never ratified, the first serious attempt to unite all the colonies under a common compact.
Chapter 78
The Articles of Confederation, November 15, 1777 376
The first U.S. Constitution—a compact that created a confederation.
Appendix: Unadopted Colonial Plans of Union 387
Chapter 79
William Penn’s Plan of Union, February 8, 1697 389
The first proposal for uniting all the colonies under a general government.
Chapter 80
Joseph Galloway’s Plan of Union, 1774 391
The immediate precursor to the Articles of Confederation.

Bibliography 395