The Online Library of Liberty
A project of Liberty Fund, Inc.

• Home
  • Front Page
  • About Liberty Fund
  • Other LF Sites
• The Forum
  • About the Forum
  • Resources
  • Reading Lists
    • Sign Up
    • Log In
  • Search the Forum
  • Archive
• The Library
  • About the Library
  • Starting Points
  • Latest Additions
  • Authors (by Period)
  • Titles (by Subject)
  • Groups & Collections
  • Portable Library DVD
  • RSS
  • Advanced Search

Mark Alcorn’s reading list

Reading list for HIST195, Democratic Citizenship

• Back to Top

  1: An Examination of the Leading Principles of the Federal Constitution - Bruce Frohnen, The American Republic: Primary Sources [2002]

  Bruce Frohnen, The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002). Chapter: An Examination of the Leading Principles of the Federal Constitution

  Accessed from oll.libertyfund.org/title/669/206205 on 2009-08-11

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  An Examination of the Leading Principles of the Federal Constitution

  noah webster

  October 10, 1787

  Noah Webster (1758–1843) was an educator, an author of children’s primers, and the compiler of the first American dictionary. This last project was taken on out of a concern, shared with Benjamin Franklin, to free Americans from cultural subservience to Great Britain. Webster, an ardent Federalist, would later edit several magazines and newspapers supporting greater powers for the central government in the United States.

  An Examination of the Leading Principles of the Federal Constitution

  To His Excellency Benjamin Franklin, Esq. President of the Commonwealth of Pennsylvania, and Member of the Late Convention, Held at Philadelphia for the Purpose of Devising a Constitution for the Government of the United States, the Following Remarks upon the System Recommended by That Convention

  Of all the memorable aeras that have marked the progress of men from the savage state to the refinements of luxury, that which has combined them into society, under a wise system of government, and given form to a nation, has ever been recorded and celebrated as the most important. Legislators have ever been deemed the greatest benefactors of mankind—respected when living, and often deified after their death. Hence the fame of Fohi and Confucius—of Moses, Solon and Lycurgus—of Romulus and Numa—of Alfred, Peter the Great, and Mango Capac; whose names will be celebrated through all ages, for framing and improving constitutions of government, which introduced order into society and secured the benefits of law to millions of the human race.

  This western world now beholds an aera important beyond conception, and which posterity will number with the age of Czar of Muscovy, and with the promulgation of the Jewish laws at Mount Sinai. The names of those men who have digested a system of constitutions for the American empire, will be enrolled with those of Zamolxis and Odin, and celebrated by posterity with the honors which less enlightened nations have paid to the fabled demi-gods of antiquity.

  But the origin of the American Republic is distinguished by peculiar circumstances. Other nations have been driven together by fear and necessity—the governments have generally been the result of a single man’s observations; or the offspring of particular interests. In the formation of our constitution, the wisdom of all ages is collected—the legislators of antiquity are consulted—as well as the opinions and interests of the millions who are concerned. In short, it is an empire of reason.

  In the formation of such a government, it is not only the right, but the indispensable duty of every citizen to examine the principles of it, to compare them with the principles of other governments, with a constant eye to our particular situation and circumstances, and thus endeavor to foresee the future operations of our own system, and its effects upon human happiness.

  Convinced of this truth, I have no apology to offer for the following remarks, but an earnest desire to be useful to my country.

  In attending to the proposed Federal Constitution, the first thing that presents itself to our consideration, is the division of the legislative into two branches. This article has so many advocates in America, that it needs not any vindication. * —But it has its opposers, among whom are some respectable characters, especially in Pennsylvania; for which reason, I will state some of the arguments and facts which incline me to favor the proposed division.

  On the first view of men in society, we should suppose that no man would be bound by a law to which he had not given his consent. Such would be our first idea of political obligation. But experience, from time immemorial, has proved it to be impossible to unite the opinions of all the members of a community, in every case; and hence the doctrine, that the opinions of a majority must give law to the whole State: a doctrine as universally received, as any intuitive truth.

  Another idea that naturally presents itself to our minds, on a slight consideration of the subject, is, that in a perfect government, all the members of a society should be present, and each give his suffrage in acts of legislation, by which he is to be bound. This is impracticable in large states; and even were it not, it is very questionable whether it would be the best mode of legislation. It was however practised in the free states of antiquity; and was the cause of innumerable evils. To avoid these evils, the moderns have invented the doctrine of representation, which seems to be the perfection of human government.

  Another idea, which is very natural, is, that to complete the mode of legislation, all the representatives should be collected into one body, for the purpose of debating questions and enacting laws. Speculation would suggest the idea; and the desire of improving upon the systems of government in the old world, would operate powerfully in its favor.

  But men are ever running into extremes. The passions, after a violent constraint, are apt to run into licentiousness; and even the reason of men, who have experienced evils from the defects of a government, will sometimes coolly condemn the whole system.

  Every person, moderately acquainted with human nature, knows that public bodies, as well as individuals, are liable to the influence of sudden and violent passions, under the operation of which, the voice of reason is silenced. Instances of such influence are not so frequent, as in individuals; but its effects are extensive in proportion to the numbers that compose the public body. This fact suggests the expediency of dividing the powers of legislation between the two bodies of men, whose debates shall be separate and not dependent on each other; that, if at any time, one part should appear to be under any undue influence, either from passion, obstinacy, jealousy of particular men, attachment to a popular speaker, or other extraordinary causes, there might be a power in the legislature sufficient to check every pernicious measure. Even in a small republic, composed of men, equal in property and abilities, and all meeting for the purpose of making laws, like the old Romans in the field of Mars, a division of the body into two independent branches, would be a necessary step to prevent the disorders, which arise from the pride, irritability and stubborness of mankind. This will ever be the case, while men possess passions, easily inflamed, which may bias their reason and lead them to erroneous conclusions.

  Another consideration has weight: A single body of men may be led astray by one person of abilities and address, who, on the first starting a proposition, may throw a plausible appearance on one side of the question, and give a lead to the whole debate. To prevent any ill consequence from such a circumstance, a separate discussion, before a different body of men, and taken up on new grounds, is a very eligible expedient.

  Besides, the design of a senate is not merely to check the legislative assembly, but to collect wisdom and experience. In most of our constitutions, and particularly in the proposed federal system, greater age and longer residence are required to qualify for the senate, than for the house of representatives. This is a wise provision. The house of representatives may be composed of new and unexperienced members—strangers to the forms of proceeding, and the science of legislation. But either positive institutions, or customs, which may supply their place, fill the senate with men venerable for age and respectability, experienced in the ways of men, and in the art of governing, and who are not liable to the bias of passions that govern the young. If the senate of Rhode Island is an exception to this observation, it is a proof that the mass of the people are corrupted, and that the senate should be elected less frequently than the other house: Had the old senate in Rhode Island held their seats for three years; had they not been chosen, amidst a popular rage for paper money, the honor of that state would probably have been saved. The old senate would have stopped the measure for a year or two, till the people could have had time to deliberate upon its consequences. I consider it as a capital excellence of the proposed constitution, that the senate can be wholly renewed but once in six years.

  Experience is the best instructor—it is better than a thousand theories. The history of every government on earth affords proof of the utility of different branches in a legislature. But I appeal only to our own experience in America. To what cause can we ascribe the absurd measures of Congress, in times past, and the speedy recision of whole measures, but to the want of some check? I feel the most profound deference for that honorable body, and perfect respect for their opinions; but some of their steps betray a great want of consideration—a defect, which perhaps nothing can remedy, but a division of their deliberations. I will instance only their resolution to build a Federal Town. When we were involved in a debt, of which we could hardly pay the interest, and when Congress could not command a shilling, the very proposition was extremely absurd. Congress themselves became ashamed of the resolution, and rescinded it with as much silence as possible. Many other acts of that body are equally reprehensible—but respect forbids me to mention them.

  Several states, since the war, have experienced the necessity of a division of the legislature. Maryland was saved from a most pernicious measure, by her senate. A rage for paper money, bordering on madness, prevailed in their house of delegates—an emission of £.500,000 was proposed; a sum equal to the circulating medium of the State. Had the sum been emitted, every shilling of specie would have been driven from circulation, and most of it from the state. Such a loss would not have been repaired in seven years—not to mention the whole catalogue of frauds which would have followed the measure. The senate, like honest, judicious men, and the protectors of the interests of the state, firmly resisted the rage, and gave the people time to cool and to think. Their resistance was effectual—the people acquiesced, and the honor and interest of the state were secured.

  The house of representatives in Connecticut, soon after the war, had taken offence at a certain act of Congress. The upper house, who understood the necessity and expediency of the measure, better than the people, refused to concur in a remonstrance to Congress. Several other circumstances gave umbrage to the lower house; and to weaken or destroy the influence of the senate, the representatives, among other violent proceedings, resolved, not merely to remove the seat of government, but to make every county town in the state the seat of government, by rotation. This foolish resolution would have disgraced school-boys—the senate saved the honor of the state, by rejecting it with disdain—and within two months, every representative was ashamed of the conduct of the house. All public bodies have these fits of passion, when their conduct seems to be perfectly boyish; and in these paroxisms, a check is highly necessary.

  Pennsylvania exhibits many instances of this hasty conduct. At one session of the legislature, an armed force is ordered, by a precipitate resolution, to expel the settlers at Wioming from their possessions—at a succeeding session, the same people are confirmed in their possessions. At one session, a charter is wrested from a corporation—at another, restored. The whole state is split into parties—everything is decided by party—any proposition from one side of the house, is sure to be damned by the other—and when one party perceives the other has the advantage, they play truant—and an officer or a mob hunt the absconding members in all the streets and alleys in town. Such farces have been repeated in Philadelphia—and there alone. Had the legislature been framed with some check upon rash proceedings, the honor of the state would have been saved—the party spirit would have died with the measures proposed in the legislature. But now, any measure may be carried by party in the house; it then becomes a law, and sows the seeds of dissension throughout the state. *

  A thousand examples similar to the foregoing may be produced, both in ancient and modern history. Many plausible things may be said in favor of pure democracy—many in favor of uniting the representatives of the people in one single house—but uniform experience proves both to be inconsistent with the peace of society, and the rights of freemen. . . .

  People who have heard and read of the European governments, founded on the different ranks of monarch, nobility and people, seem to view the senate in America, where there is no difference of ranks and titles, as a useless branch—or as a servile imitation of foreign constitutions of government, without the same reasons. This is a capital mistake. Our senates, it is true, are not composed of a different order of men; but the same reasons, the same necessity for distinct branches of the legislature exists in all governments. But in most of our American constitutions, we have all the advantages of checks and balance, without the danger which may arise from a superior and independent order of men.

  It is worth our while to institute a brief comparison between our American forms of government, and the two best constitutions that ever existed in Europe, the Roman and the British.

  In England, the king or supreme executive officer, is hereditary. In America, the president of the United States, is elective. That this is an advantage will hardly be disputed.

  In ancient Rome, the king was elective, and so were the consuls, who were the executive officers in the republic. But they were elected by the body of the people, in their public assemblies; and this circumstance paved the way for such excessive bribery and corruption as are wholly unknown in modern times. The president of the United States is also elective; but by a few men—chosen by the several legislatures—under their inspection—separated at a vast distance—and holding no office under the United States. Such a mode of election almost precludes the possibility of corruption. Besides, no state however large, has the power of chusing a president in that state; for each elector must choose at least one man, who is not an inhabitant of that State to which he belongs.

  The crown of England is hereditary—the consuls of Rome were chosen annually—both these extremes are guarded against in our proposed constitution. The president is not dismissed from his office, as soon as he is acquainted with business—he continues four years, and is re-eligible, if the people approve his conduct. Nor can he canvass for his office, by reason of the distance of the electors; and the pride and jealousy of the states will prevent his continuing too long in office. . . .

  The powers vested in the president resemble the powers of the supreme magistrates in Rome. They are not so extensive as those of the British king; but in one instance, the president, with concurrence of the senate, has powers exceeding those of the Roman consuls; I mean in the appointment of judges and other subordinate executive officers. The praetors or judges in Rome were chosen annually by the people. This was a defect in the Roman government. One half the evils in a state arise from a lax execution of the laws; and it is impossible that an executive officer can act with vigor and impartiality, when his office depends on the popular voice. An annual popular election of executive officers is the sure source of a negligent, partial and corrupt administration. The independence of the judges in England has produced a course of the most just, impartial and energetic judicial decisions, for many centuries, that can be exhibited in any nation on earth. In this point therefore I conceive the plan proposed in America to be an improvement on the Roman constitution. In all free governments, that is, in all countries, where laws govern, and not men, the supreme magistrate should have it in his power to execute any law, however unpopular, without hazarding his person or office. The laws are the sole guardians of right, and when the magistrate dares not act, every person is insecure.

  Let us now attend to the constitution and the powers of the senate.

  The house of lords in England is wholly independent on the people. The lords spiritual hold their seats by office; and the people at large have no voice in disposing of the ecclesiastical dignities. The temporal lords hold their seats by hereditary right or by grant from the king: And it is a branch of the king’s prerogative to make what peers he pleases.

  The senate in Rome was elective; but a senator held his seat for life. *

  The proposed senate in America is constituted on principles more favorable to liberty: The members are elective, and by the separate legislatures: They hold their seats for six years—they are thus rendered sufficiently dependent on their constituents; and yet are not dismissed from their office as soon as they become acquainted with the forms of proceeding.

  It may be objected by the larger states, that the representation is not equal; the smallest states having the privilege of sending the same number of senators as the largest. To obviate this objection, I would suggest but two or three ideas.

  1. If each state had a representation and a right in deciding questions, proportional to its property, three states would almost command the whole. Such a constitution would gradually annihilate the small states; and finally melt down the whole United States into one undivided sovereignty. The free states of Spain and the heptarchy in England, afford striking examples of this.

  Should it be said that such an event is desirable, I answer; the states are all entitled to their respective sovereignties, and while they claim independence in international jurisdiction, the federal constitution ought to guarantee their sovereignty.

  Another consideration has weight—There is, in all nations, a tendency toward an accumulation of power in some point. It is the business of the legislator to establish some barriers to check the tendency. In small societies, a man worth £.100,000 has but one vote, when his neighbors, who are worth but fifty pounds, have each one vote likewise. To make property the sole basis of authority, would expose many of the best citizens to violence and oppression. To make the number of inhabitants in a state, the rule of apportioning power, is more equitable; and were the United States one indivisible interest, would be a perfect rule for representation. But the detached situation of the states has created some separate interests—some local institutions, which they will not resign nor throw into the hands of other states. For these peculiar interests, the states have an equal attachment—for the preservation and enjoyment of these, an equal sovereignty is necessary; and the sovereignty of each state would not be secure, had each state, in both branches of the legislature an authority in passing laws, proportioned to its inhabitants.

  3. But the senate should be considered as representing the confederacy in a body. It is a false principle in the vulgar idea of representation, that a man delegated by a particular district in a state, is the representative of that district only; whereas in truth a member of the legislature from any town or county, is the representative of the whole state. In passing laws, he is to view the whole collective interest of the state, and act from that view; not from a partial regard to the interest of the town or county where he is chosen.

  The same principle extends to the Congress of the United States. A delegate is bound to represent the true local interest of his constituents—to state in its true light to the whole body—but when each provincial interest is thus stated, every member should act for the aggregate interest of the whole confederacy. The design of representation is to bring the collective interest into view—a delegate is not the legislator of a single state—he is as much the legislator of the whole confederacy as of the particular state where he is chosen; and if he gives his vote for a law which he believes to be beneficial to his own state only, and pernicious to the rest, he betrays his trust and violates his oath. It is indeed difficult for a man to divest himself of local attachments and act from an impartial regard to the general good; but he who cannot for the most part do this, is not a good legislator.

  These considerations suggest the propriety of continuing the senators in office, for a longer period, than the representatives. They gradually lose their partiality, generalize their views, and consider themselves as acting for the whole confederacy. Hence in the senate we may expect union and firmness—here we may find the general good the object of legislation, and a check upon the more partial and interested acts of the other branch.

  These considerations obviate the complaint, that the representation in the senate is not equal; for the senators represent the whole confederacy; and all that is wanted of the members is information of the true situation and interest of each state. As they act under the direction of the several legislatures, two men may as fully and completely represent a state, as twenty; and when the true interest of each state is known, if the senators perform the part of good legislators, and act impartially for the whole collective body of the United States, it is totally immaterial where they are chosen. *

  The house of representatives is the more immediate voice of the separate states—here the states are represented in proportion to their number of inhabitants—here the separate interests will operate with their full force, and the violence of parties and the jealousies produced by interfering interests, can be restrained and quieted only by a body of men, less local and dependent.

  It may be objected that no separate interests should exist in a state; and a division of the legislature has a tendency to create them. But this objection is founded on mere jealousy, or a very imperfect comparison of the Roman and British governments, with the proposed federal constitution.

  The house of peers in England is a body originally and totally independent on the people—the senate in Rome was mostly composed of patrician or noble families, and after the first election of a senator, he was no longer dependent on the people—he held his seat for life. But the senate of the United States can have no separate interests from the body of the people; for they live among them—they are chosen by them—they must be dismissed from their place once in six years and may at any time be impeached for mal-practices—their property is situated among the people, and with their persons, subject to the same laws. No title can be granted, but the temporary titles of office, bestowed by the voluntary election of the people; and no pre-eminence can be acquired but by the same means.

  The separation of the legislature divides the power—checks—restrains—amends the proceedings—at the same time, it creates no division of interest, that can tempt either branch to encroach upon the other, or upon the people. In turbulent times, such restraint is our greatest safety—in calm times, and in measures obviously calculated for the general good, both branches must always be unanimous. . . .

  The house of representatives is formed on very equitable principles; and is calculated to guard the privileges of the people. . . .

  Some may object to their continuance in power two years. But I cannot see any danger arising from this quarter. On the contrary, it creates less trouble for the representatives, who by such choice are taken from their professions and obliged to attend Congress, some of them at the distance of at least seven hundred miles. While men are chosen by the people, and responsible to them, there is but little danger from ambition or corruption. . . .

  The fourth section, article 1, of the new constitution declares that “The times, places, and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of chusing senators.” Here let us pause—What did the convention mean by giving Congress power to make regulations, prescribed by the legislatures? Is this expression accurate or intelligible? But the word alter is very intelligible, and the clause puts the election of representatives wholly, and the senators almost wholly, in the power of Congress.

  The views of the convention I believe to be perfectly upright—They might mean to place the election of representatives and senators beyond the reach of faction—They doubtless had good reasons, in their minds, for the clause—But I see no occasion for any power in Con-gress to interfere with the choice of their own body—They will have power to suppress insurrections, as they ought to have; but the clause in Italics gives needless and dangerous powers—I hope the states will reject it with decency, and adopt the whole system, without altering another syllable. . . .

  Every bill that passes a majority of both houses of Congress, must be sent to the president for his approbation; but it must be returned in ten days, whether approved by him or not; and the concurrence of two thirds of both houses passes the bill into a law, notwithstanding any objections of the president. The constitution therefore gives the supreme executive a check but no negative, upon the sense of Congress.

  The powers lodged in Congress are extensive; but it is presumed that they are not too extensive. The first object of the constitution is to unite the states into one compact society, for the purpose of government. If such union must exist, or the states be exposed to foreign invasions, internal discord, reciprocal encroachments upon each others property—to weakness and infamy, which no person will dispute; what powers must be collected and lodged in the supreme head or legislature of these states. The answer is easy: This legislature must have exclusive jurisdiction in all matters in which the states have a mutual interest. There are some regulations in which all the states are equally concerned—there are others, which in their operation, are limited to one state. The first belongs to Congress—the last to the respective legislatures. No one state has a right to supreme control, in any affair in which the other states have an interest, nor should Congress interfere in any affair which respects one state only. This is the general line of division, which the convention have endeavored to draw, between the powers of Congress and the rights of the individual states. The only question therefore is, whether the new constitution delegates to Congress any powers which do not respect the general interest and welfare of the United States. If these powers intrench upon the present sovereignty of any state, without having for an object the collective interest of the whole, the powers are too extensive. But if they do not extend to all concerns, in which the states have a mutual interest, they are too limited. If in any instance, the powers necessary for protecting the general interest, interfere with the constitutional rights of an individual state, such state has assumed powers that are inconsistent with the safety of the United States, and which ought instantly to be resigned. Considering the states as individuals, on equal terms, entering into a social compact, no state has a right to any power which may prejudice its neighbors. If therefore the federal constitution has collected into the federal legislature no more power than is necessary for the common defence and interest, it should be recognized by the states, however particular clauses may supersede the exercise of certain powers by the individual states.

  This question is of vast magnitude. The states have very high ideas of their separate sovereignty; altho’ it is certain, that while each exists in its full latitude, we can have no Federal sovereignty. However flattered each state may be by its independent sovereignty, we can have no union, no respectability, no national character, and what is more, no national justice, till the states resign to one supreme head the exclusive power of legislating, judging and executing, in all matters of a general nature. Every thing of a private or provincial nature, must still rest on the ground of the respective state-constitutions.

  After examining the limits of the proposed congressional powers, I confess I do not think them too extensive—I firmly believe that the life, liberty and property of every man, and the peace and independence of each state, will be more fully secured under such a constitution of federal government, than they will under a constitution with more limited powers; and infinitely more safe than under our boasted distinct sovereignties. It appears to me that Congress will have no more power than will be necessary for our union and general welfare; and such power they must have or we are in a wretched state. On the adoption of this constitution, I should value real estate twenty per cent. higher than I do at this moment.

  I will not examine into the extent of the powers proposed to be lodged in the supreme federal head; the subject would be extensive and require more time than I could bestow upon it. But I will take up some objections, that have been made to particular points of the new constitution.

  Most of the objections I have yet heard to the constitution, consist in mere insinuations unsupported by reasoning or fact. They are thrown out to instil groundless jealousies into the minds of the people, and probably with a view to prevent all government; for there are, in every society, some turbulent geniuses whose importance depends solely on faction. To seek the insidious and detestable nature of these insinuations, it is necessary to mention, and to remark on a few particulars.

  • 1. The first objection against the constitution is, that the legislature will be more expensive than our present confederation. This is so far from being true, that the money we actually lose by our present weakness, disunion and want of government would support the civil government of every state in the confederacy. Our public poverty does not proceed from the expensiveness of Congress, nor of the civil list; but from want of power to command our own advantages. We pay more money to foreign nations, in the course of business, and merely for want of government, than would, under an efficient government, pay the annual interest of our domestic debt. Every man in business knows this to be truth; and the objection can be designed only to delude the ignorant.
  • 2. Another objection to the constitution, is the division of the legislature into two branches. Luckily this objection has no advocates but in Pennsylvania; and even here their number is dwindling. The factions that reign in this state, the internal discord and passions that disturb the government and the peace of the inhabitants, have detected the errors of the constitution, and will some time or other produce a reformation. The division of the legislature has been the subject of discussion in the beginning of this essay; and will be deemed, by nineteen-twentieths of the Americans, one of the principal excellencies of the constitution.
  • 3. A third insinuation, is that the proposed federal government will annihilate the several legislatures. This is extremely disingenuous. Every person, capable of reading, must discover, that the convention have labored to draw the line between the federal and provincial powers—to define the powers of Congress, and limit them to those general concerns which must come under federal jurisdiction, and which cannot be managed in the separate legislatures—that in all internal regulations, whether of civil or criminal nature, the states retain their sovereignty, and have it guaranteed to them by this very constitution. Such a groundless insinuation, or rather mere surmise, must proceed from dark designs or extreme ignorance, and deserves the severest reprobation.
  • 4. It is alledged that the liberty of the press is not guaranteed by the new constitution. But this objection is wholly unfounded. The liberty of the press does not come within the jurisdiction of federal government. It is firmly established in all the states either by law, or positive declarations in bills of right; and not being mentioned in the federal constitution, is not—and cannot be abridged by Congress. It stands on the basis of the respective state-constitutions. Should any state resign to Congress the exclusive jurisdiction of a certain district, which should include any town where presses are already established, it is in the power of the state to reserve the liberty of the press, or any other fundamental privilege, and make it an immutable condition of the grant, that such rights shall never be violated. All objections therefore on this score are “baseless visions.”
  • 5. It is insinuated that the constitution gives Congress the power of levying internal taxes at pleasure. This insinuation seems founded on the eighth section of the first article, which declares, that “Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.”That Congress should have power to collect duties, imposts and excises, in order to render them uniform throughout the United States will hardly be controverted. The whole objection is to the right of levying internal taxes.But it will be conceded that the supreme head of the states must have power, competent to the purposes of our union, or it will be, as it now is, a useless body, a mere expense, without any advantage. To pay our public debt, to support foreign ministers and our own civil government, money must be raised; and if the duties and imposts are not adequate to these purposes, where shall the money be obtained? It will be answered, let Congress apportion the sum to be raised, and leave the legislatures to collect the money. Well this is all that is intended by the clause under consideration; with the addition of a federal power that shall be sufficient to oblige a delinquent state to comply with the requisition. Such power must exist somewhere, or the debts of the United States can never be paid. For want of such power, our credit is lost and our national faith is a bye-word.For want of such power, one state now complies fully with a requisition, another partially, and a third absolutely refuses or neglects to grant a shilling. Thus the honest and punctual are doubly loaded—and the knave triumphs in his negligence. In short, no honest man will dread a power that shall enforce an equitable system of taxation. The dis-honest are ever apprehensive of a power that shall oblige them to do what honest men are ready to do voluntarily.Permit me to ask those who object to this power of taxation, how shall money be raised to discharge our honest debts which are universally acknowledged to be just? Have we not already experienced the inefficacy of a system without power? Has it not been proved to demonstration, that a voluntary compliance with the demands of the union can never be expected? To what expedient shall we have recourse? What is the resort of all governments in cases of delinquency? Do not the states vest in the legislature, or even in the governor and council, a power to enforce laws, even with the militia of the states? And how rarely does there exist the necessity of exerting such a power? Why should such a power be more dangerous in Congress than in a legislature? Why should more confidence be reposed in a member of one legislature than of another? Why should we choose the best men in the state to represent us in Congress, and the moment they are elected arm ourselves against them as against tyrants and robbers? Do we not, in this conduct, act the part of a man, who, as soon as he has married a woman of unsuspected chastity, locks her up in a dungeon? Is there any spell or charm, that instantly changes a delegate to Congress from an honest man into a knave—a tyrant? I confess freely that I am willing to trust Congress with any powers that I should dare lodge in a state-legislature. I believe life, liberty, and property is as safe in the hands of a federal legislature, organized in the manner proposed by the convention, as in the hands of any legislature, that has ever been or ever will be chosen in any particular state.But the idea that Congress can levy taxes at pleasure is false, and the suggestion wholly unsupported. The preamble to the constitution is declaratory of the purposes of our union: and the assumption of any powers not necessary to establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and to secure the blessings of liberty to ourselves and our posterity, will be unconstitutional, and endanger the existence of Congress. Besides, in the very clause which gives the power of levying duties and taxes, the purposes to which the money shall be appropriated are specified, viz. to pay the debts and provide for the common defence and general welfare of the United States. * For these purposes money must be collected, and the power of collection must be lodged, sooner or later, in a federal head; or the common defence and general welfare must be neglected.The states in their separate capacity, cannot provide for the common defence; nay in case of a civil war, a state cannot secure its own existence. The only question therefore is, whether it is necessary to unite, and provide for our common defence and general welfare. For this question being once decided in the affirmative, leaves no room to controvert the propriety of constituting a power over the whole United States, adequate to these general purposes.The states, by granting such power, do not throw it out of their own hands—they only throw, each its proportion, into a common stock—they merely combine the powers of the several states into one point, where they must be collected, before they can be exerted. But the powers are still in their own hands; and cannot be alienated, till they create a body independent of themselves, with a force at their command, superior to the whole yeomanry of the country.
  • 6. It is said there is no provision made in the new constitution against a standing army in time of peace. Why do not people object that no provision is made against the introduction of a body of Turkish Janizaries; or against making the Alcoran the rule of faith and practice, instead of the Bible? The answer to such objections is simply this—no such provision is necessary. The people in this country cannot forget their apprehensions from a British standing army, quartered in America; and they turn their fears and jealousies against themselves. Why do not the people of most of the states apprehend danger from standing armies from their own legislatures? Pennsylvania and North Carolina, I believe, are the only states that have provided against this danger at all events. Other states have declared that “no standing armies shall be kept up without the consent of the legislature.” But this leaves the power entirely in the hands of the legislature. Many of the states however have made no provision against this evil. What hazards these states suffer! Why does not a man pass a law in his family, that no armed soldier shall be quartered in his house by his consent? The reason is very plain: no man will suffer his liberty to be abridged, or endangered—his disposition and his power are uniformly opposed to any infringement of his rights. In the same manner, the principles and habits, as well as the power of the Americans are directly opposed to standing armies: and there is as little necessity to guard against them by positive constitutions, as to prohibit the establishment of the Mahometan religion. But the constitution provides for our safety; and while it gives Congress power to raise armies, it declares that no appropriation of money to their support shall be for a longer term than two years.Congress likewise are to have power to provide for organizing, arming and disciplining the militia, but have no other command of them, except when in actual service. Nor are they at liberty to call out the militia at pleasure—but only, to execute the laws of the union, suppress insurrections, and repel invasions. For these purposes, government must always be armed with a military force, if the occasion should require it; otherwise laws are nugatory, and life and property insecure.
  • 7. Some persons have ventured to publish an intimation, that by the proposed constitution, the trial by jury is abolished in all civil cases. Others very modestly insinuate, that it is in some cases only. The fact is, that trial by jury is not affected in any case, by the constitution; except in cases of impeachment, which are to be tried by the senate. None but persons in office in or under Congress can be impeached; and even after a judgment upon an impeachment, the offender is liable to a prosecution, before a common jury, in a regular course of law. The insinuation therefore that trials by jury are to be abolished, is groundless, and beyond conception, wicked. It must be wicked, because the circulation of a barefaced falsehood, respecting a privilege, dear to freemen, can proceed only from a depraved heart and the worst intentions.
  • 8. It is also intimated as a probable event, that the federal courts will absorb the judiciaries of the federal states. This is a mere suspicion, without the least foundation. The jurisdiction of the federal states is very accurately defined and easily understood. It extends to the cases mentioned in the constitution, and to the execution of the laws of Congress, respecting commerce, revenue, and other general concerns.With respect to other civil and criminal actions, the powers and jurisdiction of the several judiciaries of each state, remain unimpaired. Nor is there anything novel in allowing appeals to the supreme court. Actions are mostly to be tried in the state where the crimes are committed—But appeals are allowed under our present confederation, and no person complains; nay, were there no appeal, every man would have reason to complain, especially when a final judgement, in an inferior court, should affect property to a large amount. But why is an objection raised against an appellate jurisdiction in the supreme court, respecting fact as well as law? Is it less safe to have the opinions of two juries than of one? I suspect many people will think this is no defect in the constitution. But perhaps it will destroy a material requisite of a good jury, viz. their vicinity to the cause of action. I have no doubt, that when causes were tried, in periods prior to the Christian aera, before twelve men, seated upon twelve stones, arranged in a circular form, under a huge oak, there was great propriety in submitting causes to men in the vicinity. The difficulty of collecting evidence, in those rude times, rendered it necessary that juries should judge mostly from their own knowledge of facts or from information obtained out of court. But in these polished ages, when juries depend almost wholly on the testimony of witnesses; and when a complication of interests, introduced by commerce and other causes, renders it almost impossible to collect men, in the vicinity of the parties, who are wholly disinterested, it is no disadvantage to have a cause tried by a jury of strangers. Indeed the latter is generally the most eligible.But the truth is, the creation of all inferior courts is in the power of Congress; and the constitution provides that Congress may make such exceptions from the right of appeals as they shall judge proper. When these courts are erected, their jurisdictions will be ascertained, and in small actions, Congress will doubtless direct that a sentence in a subordinate court shall, to a certain amount, be definite and final. All objections therefore to the judicial powers of the federal courts appear to me as trifling as any of the preceding.
  • 9. But, say the enemies of slavery, negroes may be imported for twenty-one years. This exception is addressed to the quakers; and a very pitiful exception it is.

  The truth is, Congress cannot prohibit the importation of slaves during that period; but the laws against the importation into particular states, stand unrepealed. An immediate abolition of slavery would bring ruin upon the whites, and misery upon the blacks, in the southern states. The constitution has therefore wisely left each state to pursue its own measures, with respect to this article of legislation, during the period of twenty-one years.

  Such are the principal objections that have yet been made by the enemies of the new constitution. They are mostly frivolous, or founded on false constructions, and a misrepresentation of the true state of facts. They are evidently designed to raise groundless jealousies in the minds of well meaning people, who have little leisure and opportunity to examine into the principles of government. But a little time and reflection will enable most people to detect such mischievous intentions; and the spirit and firmness which have distinguished the conduct of the Americans, during the conflict for independence, will eventually triumph over the enemies of union, and bury them in disgrace or oblivion.

  But I cannot quit this subject without attempting to correct some of the erroneous opinions respecting freedom and tyranny, and the principles by which they are supported. Many people seem to entertain an idea, that liberty consists in a power to act without any control. This is more liberty than even the savages enjoy. But in civil society, political liberty consists in acting conformably to a sense of a majority of the society. In a free government every man binds himself to obey the public voice, or the opinions of a majority; and the whole society engages to protect each individual. In such a government a man is free and safe. But reverse the case; suppose every man to act without control or fear of punishment—every man would be free, but no man would be sure of his freedom one moment. Each would have the power of taking his neighbor’s life, liberty, or property; and no man would command more than his own strength to repel the invasion. The case is the same with states. If the states should not unite into one compact society, every state may trespass upon its neighbor, and the injured state has no means of redress but its own military force.

  The present situation of our American states is very little better than a state of nature—Our boasted state sovereignties are so far from securing our liberty and property, that they, every moment, expose us to the loss of both. That state which commands the heaviest purse and longest sword, may at any moment, lay its weaker neighbor under tribute; and there is no superior power now existing, that can regularly oppose the invasion or redress the injury. From such liberty, O Lord, deliver us!

  But what is tyranny? Or how can a free people be deprived of their liberties? Tyranny is the exercise of some power over a man, which is not warranted by law, or necessary for the public safety. A people can never be deprived of their liberties, while they retain in their own hands, a power sufficient to any other power in the state. This position leads me directly to enquire, in what consists the power of a nation or of an order of men?

  In some nations, legislators have derived much of their power from the influence of religion, or from that implicit belief which an ignorant and superstitious people entertain of the gods, and their interposition in every transaction of life. The Roman senate sometimes availed themselves of this engine to carry their decrees and maintain their authority. This was particularly the case, under the aristocracy which succeeded the abolition of the monarchy. The augurs and priests were taken wholly from patrician families. They constituted a distinct order of men—had power to negative any law of the people, by declaring that it was passed during the taking of the auspices. This influence derived from the authority of opinion, was less perceptible, but as tyrannical as a military force. The same influence constitutes, at this day, a principal support of federal governments on the Eastern continent, and perhaps in South America. But in North America, by a singular concurrence of circumstances, the possibility of establishing this influence, as a pillar of government is totally precluded.

  Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive. In spite of all the nominal powers, vested in Congress by the constitution, were the system once adopted in its fullest latitude, still the actual exercise of them would be frequently interrupted by popular jealousy. I am bold to say, that ten just and constitutional measures would be resisted, where one unjust or oppressive law would be enforced. The powers vested in Congress are little more than nominal; nay real power cannot be vested in them, nor in any body, but in the people. The source of power is in the people of this country, and cannot for ages, and probably never will, be removed.

  In what then does real power consist? The answer is short and plain—in property. Could we want any proofs of this, which are not exhibited in this country, the uniform testimony of history will furnish us with multitudes. But I will go no farther for proof, than the two governments already mentioned, the Roman and the British.

  Rome exhibited a demonstrative proof of the inseparable connexion between property and dominion. The first form of its government was an elective monarchy—its second, an aristocracy; but these forms could not be permanent, because they were not supported by property. The kings at first and afterwards the patricians had nominally most of the power; but the people, possessing most of the lands, never ceased to assert their privileges, till they established a commonwealth. And the kings and senate could not have held the reigns of government in their hands so long as they did, had they not artfully contrived to manage the established religion, and play off the superstitious credulity of the people against their own power. “Thus this weak constitution of government,” says the ingenious Mr. Moyle, speaking of the aristocracy of Rome, “not founded on the true center of dominion, land, nor on any standing foundation of authority, nor rivetted in the esteem and affections of the people; and being attacked by strong passion, general interest and the joint forces of the people, mouldered away of course, and pined of a lingering consumption, till it was totally swallowed up by the prevailing faction, and the nobility were moulded into the mass of the people.” * The people, notwithstanding the nominal authority of the patricians, proceeded regularly in enlarging their own powers. They first extorted from the senate, the right of electing tribunes, with a negative upon the proceedings of the senate. They obtained the right of proposing and debating laws; which before had been vested in the senate; and finally advanced to the power of enacting laws, without the authority of the senate. They regained the rights of election in their comitia, of which they had been deprived by Servius Tullius. They procured a permanent body of laws, collected from the Grecian institutions. They destroyed the influence of augurs, or diviners, by establishing the tributa comitia, in which they were not allowed to consult the gods. They increased their power by large accessions of conquered lands. They procured a repeal of the law which prohibited marriages between the patricians and plebians. The Licinian law limited all possessions to five hundred acres of land; which, had it been fully executed, would have secured the commonwealth.

  The Romans proceeded thus step by step to triumph over the aristocracy, and to crown their privileges, they procured the right of being elected to the highest offices of the state. By acquiring the property of the plebians, the nobility, several times, held most of the power of the state; but the people, by reducing the interest of money, abolishing debts, or by forcing other advantages from the patricians, generally held the power of governing in their own hands.

  In America, we begin our empire with more popular privileges than the Romans ever enjoyed. We have not to struggle against a monarch or an aristocracy—power is lodged in the mass of the people.

  On reviewing the English history, we observe a progress similar to that in Rome—an incessant struggle for liberty from the date of Magna Charta, in John’s reign, to the revolution. The struggle has been successful, by abridging the enormous power of the nobility. But we observe that the power of the people has increased in an exact proportion to their acquisitions of property. Wherever the right of primogeniture is established, property must accumulate and remain in families. Thus the landed property in England will never be sufficiently distributed, to give the powers of government wholly into the hands of the people. But to assist the struggle for liberty, commerce has interposed, and in conjunction with manufacturers, thrown a vast weight of property into the democratic scale. Wherever we cast our eyes, we see this truth, that property is the basis of power; and this, being established as a cardinal point, directs us to the means of preserving our freedom. Make laws, irrevocable laws in every state, destroying and barring entailments; leave real estates to revolve from hand to hand, as time and accident may direct; and no family influence can be acquired and established for a series of generations—no man can obtain dominion over a large territory—the laborious and saving, who are generally the best citizens, will possess each his share of property and power, and thus the balance of wealth and power will continue where it is, in the body of the people.

  A general and tolerably equal distribution of landed property is the whole basis of national freedom: The system of the great Montesquieu will ever be erroneous, till the words property or lands in fee simple are substituted for virtue, throughout his Spirit of Laws.

  Virtue, patriotism, or love of country, never was and never will be, till mens’ natures are changed, a fixed, permanent principle and support of government. But in an agricultural country, a general possession of land in fee simple, may be rendered perpetual, and the inequalities introduced by commerce, are too fluctuating to endanger government. An equality of property, with a necessity of alienation, constantly operating to destroy combinations of powerful families, is the very soul of a republic—While this continues, the people will inevitably possess both power and freedom; when this is lost, power departs, liberty expires, and a commonwealth will inevitably assume some other form.

  The liberty of the press, trial by jury, the Habeas Corpus writ, even Magna Charta itself, although justly deemed the palladia of freedom, are all inferior considerations, when compared with a general distribution of real property among every class of people. * The power of entailing estates is more dangerous to liberty and republican government, than all the constitutions that can be written on paper, or even than a standing army. Let the people have property, and they will have power—a power that will for ever be exerted to prevent a restriction of the press, and abolition of trial by jury, or the abridgement of any other privilege. The liberties of America, therefore, and her forms of government, stand on the broadest basis. Removed from the fears of a foreign invasion and conquest, they are not exposed to the convulsions that shake other governments; and the principles of freedom are so general and energetic, as to exclude the possibility of a change in our republican constitutions.

  But while property is considered as the basis of the freedom of the American yeomanry, there are other auxiliary supports; among which is the information of the people. In no country, is education so general—in no country, have the body of the people such a knowledge of the rights of men and the principles of government. This knowledge, joined with a keen sense of liberty and a watchful jealousy, will guard our constitutions, and awaken the people to an instantaneous resistance of encroachments.

  But a principal bulwark of freedom is the right of election. An equal distribution of property is the foundation of a republic; but popular elections form the great barrier, which defends it from assault, and guards it from the slow and imperceptible approaches of corruption. Americans! never resign that right. It is not very material whether your representatives are elected for one year or two—but the right is the Magna Charta of your governments. For this reason, expunge that clause of the new constitution before mentioned, which gives Congress an influence in the election of their own body. The time, place and manner of chusing senators or representatives are of little or no consequence to Congress. The number of members and time of meeting in Congress are fixed; but the choice should rest with the several states. I repeat it—reject the clause with decency, but with unanimity and firmness.

  Excepting that clause the constitution is good—it guarantees the fundamental principles of our several constitutions—it guards our rights—and while it vests extensive powers in Congress, it vests no more than are necessary for our union. Without powers lodged somewhere in a single body, fully competent to lay and collect equal taxes and duties—to adjust controversies between different states—to silence contending interests—to suppress insurrections—to regulate commerce—to treat with foreign nations, our confederation is a cobweb—liable to be blown asunder by every blast of faction that is raised in the remotest corner of the United States.

  Every motive that can possibly influence men ever to unite under civil government, now urges the unanimous adoption of the new constitution. But in America we are urged to it by a singular necessity. By the local situation of the several states a few command all the advantages of commerce. Those states which have no advantages, made equal exertions for independence, loaded themselves with immense debts, and now are utterly unable to discharge them; while their richer neighbors are taxing them for their own benefit, merely because they can. I can prove to a demonstration that Connecticut, which has the heaviest internal or state debt, in proportion to its number of inhabitants, of any in the union, cannot discharge its debt, on any principles of taxation ever yet practised. Yet the state pays in duties, at least 100,000 dollars annually, on goods consumed by its own people, but imported by New York. This sum, could it be saved to the state by an equal system of revenue, would enable that state to gradually sink its debt. *

  New Jersey and some other states are in the same situation, except that their debts are not so large, in proportion to their wealth and population.

  The boundaries of the several states were not drawn with a view to independence; and while this country was subject to Great Britain, they produced no commercial or political inconveniences. But the revolution has placed things on a different footing. The advantages of some states, and the disadvantages of others are so great—and so materially affect the business and interest of each, that nothing but an equalizing system of revenue, that shall reduce the advantages to some equitable proportion, can prevent a civil war and save the national debt. Such a system of revenue is the sine qua non of public justice and tranquillity.

  It is absurd for a man to oppose the adoption of the constitution, because he thinks some part of it defective or exceptionable. Let every man be at liberty to expunge what he judges to be exceptionable, and not a syllable of the constitution will survive the scrutiny. A painter, after executing a masterly piece, requested every spectator to draw a pencil mark over the part that did not please him; but to his surprise, he soon found the whole piece defaced. Let every man examine the most perfect building by his own taste, and like some microscopic critics, condemn the whole for small deviations from the rules of architecture, and not a part of the best constructed fabric would escape. But let any man take a comprehensive view of the whole, and he will be pleased with the general beauty and proportions, and admire the structure. The same remarks apply to the new constitution. I have no doubt that every member of the late convention has exceptions to some part of the system proposed. Their constituents have the same, and if every objection must be removed, before we have a national government, the Lord have mercy on us.

  Perfection is not the lot of humanity. Instead of censuring the small faults of the constitution, I am astonished that so many clashing interests have been reconciled—and so many sacrifices made to the general interest! The mutual concessions made by the gentlemen of the convention, reflect the highest honor on their candor and liberality; at the same time, they prove that their minds were deeply impressed with a conviction, that such mutual sacrifices are essential to our union. They must be made sooner or later by every state; or jealousies, local interests and prejudices will unsheath the sword, and some Caesar or Cromwell will avail himself of our divisions, and wade to a throne through streams of blood.

  It is not our duty as freemen, to receive the opinions of any men however great and respectable, without an examination. But when we reflect that some of the greatest men in America, with the venerable Franklin and the illustrious Washington at their head; some of them the fathers and saviors of their country, men who have labored at the helm during a long and violent tempest, and guided us to the haven of peace—and all of them distinguished for their abilities, their acquaintance with ancient and modern governments, as well as with the temper, the passions, the interests and the wishes of the Americans;—when we reflect on these circumstances, it is impossible to resist impressions of respect, and we are almost impelled to suspect our own judgements, when we call in question any part of the system, which they have recommended for adoption. Not having the same means of information, we are more liable to mistake the nature and tendency of particular articles of the constitution, or the reasons on which they were admitted. Great confidence therefore should be reposed in the abilities, the zeal and integrity of that respectable body. But after all, if the constitution should, in its future operation, be found defective or inconvenient, two-thirds of both houses of Congress or the application of two-thirds of the legislatures, may open the door for amendments. Such improvements may then be made, as experience shall dictate.

  Let us then consider the New Federal Constitution, as it really is, an improvement on the best constitutions that the world ever saw. In the house of representatives, the people of America have an equal voice and suffrage. The choice of men is placed in the freemen or electors at large; and the frequency of elections, and the responsibility of the members, will render them sufficiently dependent on their constituents. The senate will be composed of older men; and while their regular dismission from office, once in six years, will preserve their dependence on their constituents, the duration of their existence will give firmness to their decisions, and temper the factions which must necessarily prevail in the other branch. The president of the United States is elective, and what is a capital improvement on the best governments, the mode of chusing him excludes the danger of faction and corruption. As the supreme executive, he is invested with power to enforce the laws of the union and give energy to the federal government.

  The constitution defines the powers of Congress; and every power not expressly delegated to that body, remains in the several state-legislatures. The sovereignty and the republican form of government of each state is guaranteed by the constitution; and the bounds of jurisdiction between the federal and respective state governments, are marked with precision. In theory, it has all the energy and freedom of the British and Roman governments, without their defects. In short, the privileges of freemen are interwoven into the feelings and habits of the Americans; liberty stands on the immoveable basis of a general distribution of property and diffusion of knowledge; but the Americans must cease to contend, to fear, and to hate, before they can realize the benefits of independence and government, or enjoy the blessings, which heaven has lavished, in rich profusion, upon this western world.

  part six

  The Bill of Rights

  Opposition to the new Constitution was rooted in fear that the new, more powerful central government would invade the accustomed rights of the states and of the people. Whether as subjects of British colonies or citizens of independent states, Americans had always ruled themselves in most matters—looking first to small communities or townships, then to the colonial or state government, and only in more general, common matters beyond their state borders. Moreover, Americans’ experience with the central government of Great Britain had been one in which their customary rights, guaranteed by their charters and codes of law, had been repeatedly violated. Thus, “Anti-Federalists” criticized the proposed Constitution as a danger to the people’s ability to rule themselves and to live free from the kinds of impositions visited upon them by Great Britain.

  Anti-Federalists spent most of their time and energy proposing amendments to the Constitution aimed at defending the rights of the states and of the people. A number of the changes they sought were structural. For example, Anti-Federalists often sought to take away the central government’s right to tax citizens directly, rather than by requisitioning money from the states, which then would tax their citizens as they saw fit. In the end, the focus was on calls for guarantees that the central government would not violate certain individual rights or intrude upon certain policy areas considered appropriate only for state action. Selections here illustrate the debate on the purpose and nature of such guarantees when the central government has been given only certain specific powers to act, and only in certain defined policy areas.

  [*] A division of the legislature has been adopted in the new constitution of every state except Pennsylvania and Georgia.

  [*] I cannot help remarking the singular jealousy of the constitution of Pennsylvania, which requires that a bill shall be published for the consideration of the people, before it is enacted into a law, except in extraordinary cases. This annihilates the legislature, and reduces it to an advisory body. It almost wholly supersedes the uses of representation, the most excellent improvement in modern governments. Besides the absurdity of constituting a legislature, without supreme power, such a system will keep the state perpetually embroiled. It carries the spirit of discussion into all quarters, without the means of reconciling the opinions of men, who are not assembled to hear each others’ arguments. They debate with themselves—form their own opinions, without the reasons which influence others, and without the means of informa-tion. Thus the warmth of different opinions, which, in other states, dies in the legislature, is diffused through the state of Pennsylvania, and becomes personal and permanent. The seeds of dissension are sown in the constitution, and no state, except Rhode Island, is so distracted by factions.

  [*] I say the senate was elective—but this must be understood with some exceptions; or rather qualifications. The constitution of the Roman senate has been a subject of enquiry, with the first men in modern ages. Lord Chesterfield requested the opinion of the learned Vertot, upon the manner of chusing senators in Rome; and it was a subject of discussion between Lord Harvey and Dr. Middleton. The most probable account of the manner of forming the senate, and filling up vacancies, which I have collected from the best writers on this subject, is here abridged for the consideration of the reader.

  Romulus chose one hundred persons, from the principal families in Rome, to form a council or senate; and reserved to himself the right of nominating their successors; that is of filling vacancies. “Mais comme Romulus avoit lui même choisi les premiers senateurs il se reserva le droit de nommer a son gré, leurs successeurs.”—Mably, sur les Romains. Other well informed historians intimate that Romulus retained the right of nominating the president only. After the union of the Sabines with the Romans, Romulus added another hundred members to the senate, but by consent of the people. Tarquin, the ancient, added another hundred; but historians are silent as to the manner.

  On the destruction of Alba by Hostilius, some of the principal Alban families were added to the senate, by consent of the senate and people.

  After the demolition of the monarchy, Appius Claudius was admitted into the senate by order of the people.

  Cicero testifies that, from the extinction of the monarchy, all the members of the senate were admitted by command of the people.

  It is observable that the first creation of the senators was the act of the monarch; and the first patrician families claimed the sole right of admission into the senate. “Les familles qui descendoient des deux cent senateurs que Romulus avoit créés,—se crurent seules en droit d’entrer dans le senat.”—Mably

  This right however was not granted in its utmost extent; for many of the senators in the Roman commonwealth, were taken from plebian families. For sixty years before the institution of the censorship, which was a. u. c. 311, we are not informed how vacancies in the senate were supplied. The most probable method was this; to enrol, in the list of senators, the different magistrates; viz., the consuls, praetors, the two quaestors of patrician families, the five tribunes (afterwards ten) and the two aediles of plebian families: The office of quaestor gave an immedi-ate admission into the senate. The tribunes were admitted two years after their creation. This enrollment seems to have been a matter of course; and likewise their confirmation by the people in their comitia or assemblies.

  On extraordinary occasions, when the vacancies of the senate were numerous, the consuls used to nominate some of the most respectable of the equestrian order to be chosen by the people.

  On the institution of the censorship, the censors were invested with full powers to inspect the manners of the citizens,—enrol them in their proper ranks according to their property,—make out lists of the senators and leave out the names of such as had rendered themselves unworthy of their dignity by any scandalous vices. This power they several times exercised; but the disgraced senators had an appeal to the people.

  After the senate had lost half its members in the war with Hannibal, the dictator, M. Fabius Buteo, filled up the number with the magistrates, with those who had been honored with a civic crown, or others who were respectable for age and character. One hundred and seventy new members were added at once, with the approbation of the people. The vacancies occasioned by Sylla’s proscriptions amounted to three hundred, which were supplied by persons nominated by Sylla and chosen by the people.

  Before the time of the Gracchi, the number of senators did not exceed three hundred. But in Sylla’s time, so far as we can collect from direct testimonies, it amounted to about five hundred. The age necessary to qualify for a seat in the senate is not exactly ascertained; but several circumstances prove it to have been about thirty years.

  See Vertot, Mably, and Middleton on this subject.

  In the last ages of Roman splendor, the property requisite to qualify a person for a senator, was settled by Augustus at eight hundred sestertia—more than six thousand pounds sterling.

  [*] It is a capital defect of most of the state-constitutions, that the senators, like the representatives, are chosen in particular districts, They are thus inspired with local views, and however wrong it may be to entertain them, yet such is the constitution of human nature, that men are almost involuntarily attached to the interest of the district which has reposed confidence in their abilities and integrity. Some partiality therefore for constituents is always expectable. To destroy it as much as possible, a political constitution should remove the grounds of local attachment. Connecticut and Maryland have wisely destroyed this attachment in their senates, by ordaining that the members shall be chosen in the state at large. The senators hold their seats by the suffrages of the state, not of a district; hence they have no particular number of men to fear or to oblige.—They represent the state; hence that union and firmness which the senates of those states have manifested on the most trying occasions, and by which they have prevented the most rash and iniquitous measures.

  It may be objected, that when the election of senators is vested in the people, they must choose men in their own neighborhood, or else those with whom they are unacquainted. With respect to representatives, this objection does not lie; for they are chosen in small districts; and as to senators, there is, in every state, a small number of men, whose reputation for abilities, integrity and good conduct will lead the people to a very just choice. Old experienced statesmen should compose the senate; and people are generally, in this free country, acquainted with their characters. Were it possible, as it is in small states, it would be an improvement in the doctrine of representation, to give every freeman the right of voting for every member of the legislature, and the privilege of choosing the men in any part of the state. This would totally exclude bribery and undue influence; for no man can bribe a state; and it would almost annihilate partial views in legislation. But in large states it may be impracticable.

  [*] The clause may at first appear ambiguous. It may be uncertain whether we should read and understand it thus—“The Congress shall have power to lay and collect taxes, duties, imposts and excises in order to pay the debts,” &c. or whether the meaning is—“The Congress shall have power to lay and collect taxes, duties, imposts and excises, and shall have power to pay the debts,” &c. On considering the construction of the clause, and comparing it with the preamble, the last sense seems to be improbable and absurd. But it is not very material; for no powers are vested in Congress but what are included under the general expressions, of providing for the common defence and general welfare of the United States. Any powers not promotive of these purposes, will be unconstitutional;—consequently any appropriations of money to any other purpose will expose the Congress to the resentment of the states, and the members to impeachment and loss of their seats.

  [*] Essay on the Roman government.

  [*] Montesquieu supposed virtue to be the principle of a republic. He derived his notions of this form of government, from the astonishing firmness, courage and patriotism which distinguished the republics of Greece and Rome. But this virtue consisted in pride, contempt of strangers and a martial enthusiasm which sometimes displayed itself in defence of their country. These principles are never permanent—they decay with refinement, intercourse with other nations and increase of wealth. No wonder then that these republics declined, for they were not founded on fixed principles; and hence authors imagine that republics cannot be durable. None of the celebrated writers on government seems to have laid sufficient stress on a general possession of real property in fee-simple. Even the author of the Political Sketches, in the Museum for the month of September, seems to have passed it over in silence; although he combats Montesquieu’s system, and to prove it false, enumerates some of the principles which distinguish our governments from others, and which he supposes constitutes the support of republics.

  The English writers on law and government consider Magna Charta, trial by juries, the Habeas Corpus act, and the liberty of the press, as the bulwarks of freedom. All this is well. But in no government of consequence in Europe, is freedom established on its true and immoveable foundation. The property is too much accumulated, and the accumulations too well guarded, to admit the true principle of republics. But few centuries have elapsed, since the body of the people were vassals. To such men, the smallest extension of popular privileges, was deemed an invaluable blessing. Hence the encomiums upon trial by juries, and the articles just mentioned. But these people have never been able to mount to the source of liberty, estates in fee, or at least but partially; they are yet obliged to drink at the streams. Hence the English jealousy of certain rights, which are guaranteed by acts of parliament. But in America, and here alone, we have gone at once to the fountain of liberty, and raised the people to their true dignity. Let the lands be possessed by the people in fee-simple, let the fountain be kept pure, and the streams will be pure of course. Our jealousy of trial by jury, the liberty of the press, &c., is totally groundless. Such rights are inseparably connected with the power and dignity of the people, which rest on their property. They cannot be abridged. All other [free] nations have wrested property and freedom from barons and tyrants; we begin our empire with full possession of property and all its attending rights.

  [*] The state debt of Connecticut is about 3,500,000 dollars, its proportion of the federal debt about the same sum. The annual interest of the whole 420,000 dollars.

• Back to Top

  2: Letter to the Danbury Baptist Association - Bruce Frohnen, The American Republic: Primary Sources [2002]

  Bruce Frohnen, The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002). Chapter: Letter to the Danbury Baptist Association

  Accessed from oll.libertyfund.org/title/669/206103 on 2009-08-11

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  Letter to the Danbury Baptist Association

  thomas jefferson

  January 1, 1802

  Jefferson’s letter to the Danbury Baptist Association expresses the belief that religious and public life should be kept strictly separate. In the letter, Jefferson articulates only one of several American views on the proper relationship between religion and politics.

  Letter to the Danbury Baptist Association

  To Messrs. Nehemiah Dodge, Ephram Robbins, and Stephen S. Nelson, a Committee of the Danbury Baptist Association, in the State of Connecticut

  January 1, 1802

  Gentlemen,—The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist Association, give me the highest satisfaction. My duties dictate a faithful and zealous pursuit of the interests of my constituents, and in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.

  Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

  I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious association, assurances of my high respect and esteem.

  part three

  Defending the Charters

  Immigrants to America brought with them a long tradition of chartered rights. In determining the limits of political authority, they looked to a rich history, encapsulated in several important documents, of social and political custom. From Magna Charta, or the “Great Charter,” of 1215 through the English Bill of Rights, Englishmen had won successive victories in their battles (sometimes literally fought with fire and sword) to limit their king’s ability to imprison subjects indefinitely without trial, try subjects in arbitrary ways, quarter troops in subjects’ homes, and otherwise do as he wished with those whom he ruled.

  The colonists ruled themselves under their own charters, or grants from the king. These charters gave them certain rights and reserved others for the king, his ministers, or other governing persons or bodies (for example, a proprietary or royal governor). Americans believed that these charters established their rights, as English subjects, to all the other rights derived from Magna Charta. The king and parliament of Great Britain did not accept this view. The result was a long history of tension between colonials and the government in the mother country. It was during this time of tension that Americans developed a distinctive reading of their history and their rights as English subjects and human beings.

• Back to Top

  3: CHAPTER VII.: Of political or civil society. - John Locke, The Works of John Locke, vol. 4 Economic Writings and Two Treatises of Government [1691]

  John Locke, The Works of John Locke in Nine Volumes, (London: Rivington, 1824 12th ed.). Vol. 4. Chapter: CHAPTER VII.: Of political or civil society.

  Accessed from oll.libertyfund.org/title/763/65477 on 2009-08-11

  The text is in the public domain.

  ---

  CHAPTER VII.

  Of political or civil society.

  § 77.

  God having made man such a creature, that in his own judgment, it was not good for him to be alone, put him under strong obligations of necessity, convenience, and inclination, to drive him into society, as well as fitted him with understanding and language to continue and enjoy it. The first society was between man and wife, which gave beginning to that between parents and children; to which, in time, that between master and servant came to be added: and though all these might, and commonly did meet together, and make up but one family, wherein the master or mistress of it had some sort of rule proper to a family; each of these, or all together, came short of political society, as we shall see, if we consider the different ends, ties, and bounds of each of these.

  § 78.

  Conjugal society is made by a voluntary compact between man and woman; and though it consist chiefly in such a communion and right in one another’s bodies as is necessary to its chief end, procreation; yet it draws with it mutual support and assistance, and a communion of interests too, as necessary not only to unite their care and affection, but also necessary to their common offspring, who have a right to be nourished and maintained by them, till they are able to provide for themselves.

  § 79.

  For the end of conjunction between male and female being not barely procreation, but the continuation of the species; this conjunction betwixt male and female ought to last, even after procreation, so long as is necessary to the nourishment and support of the young ones, who are to be sustained by those that got them, till they are able to shift and provide for themselves. This rule, which the infinite wise Maker hath set to the works of his hands, we find the inferior creatures steadily obey. In those viviparous animals which feed on grass, the conjunction between male and female lasts no longer than the very act of copulation; because the teat of the dam being sufficient to nourish the young, till it be able to feed on grass, the male only begets, but concerns not himself for the female or young, to whose sustenance he can contribute nothing. But in beasts of prey the conjunction lasts longer: because the dam not being able well to subsist herself, and nourish her numerous offspring by her own prey alone, a more laborious, as well as more dangerous way of living, than by feeding on grass; the assistance of the male is necessary to the maintenance of their common family, which cannot subsist till they are able to prey for themselves, but by the joint care of male and female. The same is to be observed in all birds (except some domestic ones, where plenty of food excuses the cock from feeding, and taking care of the young brood), whose young needing food in the nest, the cock and hen continue mates, till the young are able to use their wing, and provide for themselves.

  § 80.

  And herein I think lies the chief, if not the only reason, “why the male and female in mankind are tied to a longer conjunction” than other creatures, viz. because the female is capable of conceiving, and de facto is commonly with child again, and brings forth too a new birth, long before the former is out of a dependency for support on his parents help, and able to shift for himself, and has all the assistance that is due to him from his parents: whereby the father, who is bound to take care for those he hath begot, is under an obligation to continue in conjugal society with the same woman longer than other creatures, whose young being able to subsist of themselves before the time of procreation returns again, the conjugal bond dissolves of itself, and they are at liberty, till Hymen at his usual anniversary season summons them again to choose new mates. Wherein one cannot but admire the wisdom of the great Creator, who having given to man foresight, and an ability to lay up for the future, as well as to supply the present necessity, hath made it necessary, that society of man and wife should be more lasting, than of male and female amongst other creatures; that so their industry might be encouraged, and their interest better united, to make provision and lay up goods for their common issue, which uncertain mixture, or easy and frequent solutions of conjugal society, would mightily disturb.

  § 81.

  But though these are ties upon mankind, which make the conjugal bonds more firm and lasting in man, than the other species of animals; yet it would give one reason to inquire, why this compact, where procreation and education are secured, and inheritance taken care for, may not be made determinable, either by consent, or at a certain time, or upon certain conditions, as well as any other voluntary compacts, there being no necessity in the nature of the thing, nor to the ends of it, that it should always be for life; I mean, to such as are under no restraint of any positive law, which ordains all such contracts to be perpetual.

  § 82.

  But the husband and wife, though they have but one common concern, yet having different understandings, will unavoidably sometimes have different wills too; it therefore being necessary that the last determination, i. e. the rule, should be placed somewhere; it naturally falls to the man’s share, as the abler and the stronger. But this reaching but to the things of their common interest and property, leaves the wife in the full and free possession of what by contract is her peculiar right, and gives the husband no more power over her life than she has over his; the power of the husband being so far from that of an absolute monarch, that the wife has in many cases a liberty to separate from him, where natural right or their contract allows it; whether that contract be made by themselves in the state of nature, or by the customs or laws of the country they live in; and the children upon such separation fall to the father’s or mother’s lot, as such contract does determine.

  § 83.

  For all the ends of marriage being to be obtained under politic government, as well as in the state of nature, the civil magistrate doth not abridge the right or power of either naturally necessary to those ends, viz. procreation and mutual support and assistance whilst they are together; but only decides any controversy that may arise between man and wife about them. If it were otherwise, and that absolute sovereignty and power of life and death naturally belonged to the husband, and were necessary to the society between man and wife, there could be no matrimony in any of those countries where the husband is allowed no such absolute authority. But the ends of matrimony requiring no such power in the husband, the condition of conjugal society put it not in him, it being not at all necessary to that state. Conjugal society could subsist and attain its ends without it; nay, community of goods, and the power over them, mutual assistance and maintenance, and other things belonging to conjugal society, might be varied and regulated by that contract which unites man and wife in that society, as far as may consist with procreation and the bringing up of children till they could shift for themselves; nothing being necessary to any society, that is not necessary to the ends for which it is made.

  § 84.

  The society betwixt parents and children, and the distinct rights and powers belonging respectively to them, I have treated of so largely, in the foregoing chapter, that I shall not here need to say any thing of it. And I think it is plain, that it is far different from a politic society.

  § 85.

  Master and servant are names as old as history, but given to those of far different condition; for a freeman makes himself a servant to another, by selling him, for a certain time, the service he undertakes to do, in exchange for wages he is to receive: and though this commonly puts him into the family of his master, and under the ordinary discipline thereof: yet it gives the master but a temporary power over him, and no greater than what is contained in the contract between them. But there is another sort of servants, which by a peculiar name we call slaves, who being captives taken in a just war, are by the right of nature subjected to the absolute dominion and arbitrary power of their masters. These men having, as I say, forfeited their lives, and with it their liberties, and lost their estates; and being in the state of slavery, not capable of any property, cannot in that state be considered as any part of civil society; the chief end whereof is the preservation of property.

  § 86.

  Let us therefore consider a master of a family with all these subordinate relations of wife, children, servants, and slaves, united under the domestic rule of a family; which, what resemblance soever it may have in its order, offices, and number too, with a little commonwealth, yet is very far from it, both in its constitution, power, and end: or if it must be thought a monarchy, and the paterfamilias the absolute monarch in it, absolute monarchy will have but a very shattered and short power, when it is plain by what has been said before, that the master of the family has a very distinct and differently limited power, both as to time and extent, over those several persons that are in it: for excepting the slave (and the family is as much a family, and his power as paterfamilias as great, whether there be any slaves in his family or no) he has no legislative power of life and death over any of them, and none too but what a mistress of a family may have as well as he. And he certainly can have no absolute power over the whole family, who has but a very limited one over every individual in it. But how a family, or any other society of men, differ from that which is properly political society, we shall best see by considering wherein political society itself consists.

  § 87.

  Man being born, as has been proved, with a title to perfect freedom, and uncontrolled enjoyment of all the rights and privileges of the law of nature, equally with any other man, or number of men in the world, hath by nature a power, not only to preserve his property, that is, his life, liberty, and estate, against the injuries and attempts of other men; but to judge of and punish the breaches of that law in others, as he is persuaded the offence deserves, even with death itself, in crimes where the heinousness of the fact, in his opinion, requires it. But because no political society can be, nor subsist, without having in itself the power to preserve the property, and, in order thereunto, punish the offences of all those of that society; there and there only is political society, where every one of the members hath quitted his natural power, resigned it up into the hands of the community in all cases that excludes him not from appealing for protection to the law established by it. And thus all private judgment of every particular member being excluded, the community comes to be umpire by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society concerning any matter of right; and punishes those offences which any member hath committed against the society, with such penalties as the law has established, whereby it is easy to discern, who are, and who are not, in political society together. Those who are united into one body, and have a common established law and judicature to appeal to, with authority to decide controversies between them, and punish offenders, are in civil society one with another: but those who have no such common appeal, I mean on earth, are still in the state of nature, each being, where there is no other, judge for himself, and executioner: which is, as I have before showed, the perfect state of nature.

  § 88.

  And thus the commonwealth comes by a power to set down what punishment shall belong to the several transgressions which they think worthy of it, committed amongst the members of that society, (which is the power of making laws) as well as it has the power to punish any injury done unto any of its members, by any one that is not of it, (which is the power of war and peace,) and all this for the preservation of the property of all the members of that society, as far as is possible. But though every man who has entered into civil society, and is become a member of any commonwealth, has thereby quitted his power to punish offences against the law of nature, in prosecution of his own private judgment; yet with the judgment of offences, which he has given up to the legislative in all cases, where he can appeal to the magistrate, he has given a right to the commonwealth to employ his force, for the execution of the judgments of the commonwealth, whenever he shall be called to it; which indeed are his own judgments, they being made by himself, or his representative. And herein we have the original of the legislative and executive power of civil society, which is to judge by standing laws, how far offences are to be punished, when committed within the commonwealth; and also to determine, by occasional judgments founded on the present circumstances of the fact, how far injuries from without are to be vindicated; and in both these to employ all the force of all the members, when there shall be need.

  § 89.

  Whenever therefore any number of men are so united into one society, as to quit every one his executive power of the law of nature, and to resign it to the public, there and there only is a political, or civil society. And this is done, wherever any number of men, in the state of nature, enter into society to make one people, one body politic, under one supreme government; or else when any one joins himself to, and incorporates with any government already made: for hereby he authorizes the society, or, which is all one, the legislative thereof, to make laws for him, as the public good of the society shall require; to the execution whereof, his own assistance (as to his own degrees) is due. And this puts men out of a state of nature into that of a commonwealth, by setting up a judge on earth, with authority to determine all the controversies, and redress the injuries that may happen to any member of the commonwealth: which judge is the legislative, or magistrate appointed by it. And wherever there are any number of men, however associated, that have no such decisive power to appeal to, there they are still in the state of nature.

  § 90.

  Hence it is evident, that absolute monarchy, which by some men is counted the only governmen in the world, is indeed inconsistent with civil society, and so can be no form of civil government at all; for the end of civil society being to avoid and remedy these inconveniencies of the state of nature, which necessarily follow from every man being judge in his own case, by setting up a known authority, to which every one of that society may appeal upon any injury received, or controversy that may arise, and which every one of the* society ought to obey; wherever any persons are, who have not such an authority to appeal to for the decision of any difference between them, there those persons are still in the state of nature; and so is every absolute prince, in respect of those who are under his dominion.

  § 91.

  For he being supposed to have all, both legislative and executive power in himself alone, there is no judge to be found, no appeal lies open to any one, who may fairly, and indifferently, and with authority decide, and from whose decision relief and redress may be expected of any injury or inconveniency that may be suffered from the prince, or by his order: so that such a man, however intitled, czar, or grand seignior, or how you please, is as much in the state of nature, with all under his dominion, as he is with the rest of mankind: for wherever any two men are, who have no standing rule, and common judge to appeal to on earth, for the determination of controversies of right betwixt them, there they are still in the state of† nature, and under all the inconveniencies of it, with only this woful difference to the subject, or rather slave of an absolute prince; that whereas in the ordinary state of nature he has a liberty to judge of his right, and, according to the best of his power, to maintain it; now, whenever his property is invaded by the will and order of his monarch, he has not only no appeal, as those in society ought to have, but, as if he were degraded from the common state of rational creatures, is denied a liberty to judge of, or to defend his right; and so is exposed to all the misery and inconveniencies, that a man can fear from one, who being in the unrestrained state of nature, is yet corrupted with flattery, and armed with power.

  § 92.

  For he that thinks absolute power purifies men’s blood, and corrects the baseness of human nature, need read but the history of this or any other age, to be convinced of the contrary. He that would have been so insolent and injurious in the woods of America, would not probably be much better in a throne; where perhaps learning and religion shall be found out to justify all that he shall do to his subjects, and the sword presently silence all those that dare question it: for what the protection of absolute monarchy is, what kind of fathers of their countries it makes princes to be, and to what a degree of happiness and security it carries civil society, where this sort of government is grown to perfection; he that will look into the late relation of Ceylon, may easily see.

  § 93.

  In absolute monarchies, indeed, as well as other governments of the world, the subjects have an appeal to the law, and judges to decide any controversies, and restrain any violence that may happen betwixt the subjects themselves, one amongst another. This every one thinks necessary, and believes he deserves to be thought a declared enemy to society and mankind, who should go about to take it away. But whether this be from a true love of mankind and society, and such a charity as we all owe one to another, there is reason to doubt: for this is no more than what every man, who loves his own power, profit, or greatness, may and naturally must do, keep those animals from hurting, or destroying one another, who labour and drudge only for his pleasure and advantage; and so are taken care of, not out of any love the master has for them, but love of himself, and the profit they bring him: for if it be asked, what security, what fence is there, in such a state, against the violence and oppression of this absolute ruler? the very question can scarce be borne. They are ready to tell you, that it deserves death only to ask after safety. Betwixt subject and subject, they will grant, there must be measures, laws, and judges, for their mutual peace and security: but as for the ruler he ought to be absolute, and is above all such circumstances; because he has power to do more hurt and wrong, it is right when he does it. To ask how you may be guarded from harm, or injury, on that side where the strongest hand is to do it, is presently the voice of faction and rebellion: as if when men quitting the state of nature entered into society, they agreed that all of them but one should be under the restraint of laws, but that he should still retain all the liberty of the state of nature, increased with power, and made licentious by impunity. This is to think, that men are so foolish, that they take care to avoid what mischiefs may be done them by polecats, or foxes; but are content, nay think it safety, to be devoured by lions.

  § 94.

  But whatever flatterers may talk to amuse people’s understandings, it hinders not men from feeling; and when they perceive, that any man, in what station soever, is out of the bounds of the civil society which they are of, and that they have no appeal on earth against any harm they may receive from him, they are apt to think themselves in the state of nature, in respect of him whom they find to be so: and to take care, as soon as they can, to have that safety and security in civil society, for which it was instituted, and for which only they entered into it. And therefore, though perhaps at first, (as shall be showed more at large hereafter in the following part of this discourse) some one good and excellent man having got a pre-eminency amongst the rest, had this deference paid to his goodness and virtue, as to a kind of natural authority, that the chief rule, with arbitration of their differences, by a tacit consent devolved into his hands, without any other caution, but the assurance they had of his uprightness and wisdom; yet when time, giving authority, and (as some men would persuade us) sacredness to customs, which the negligent and unforeseen innocence of the first ages began, had brought in successors of another stamp; the people finding their properties not secure under the government, as then it was, (whereas government has no other end but the preservation of* property) could never be safe nor at rest, nor think themselves in civil society, till the legislature was placed in collective bodies of men, call them senate, parliament, or what you please. By which means every single person became subject, equally with other the meanest men, to those laws, which he himself, as part of the legislative, had established; nor could any one, by his own authority, avoid the force of the law, when once made; nor by any pretence of superiority plead exemption, thereby to license his own, or the miscarriages of any of his dependents. * “No man in civil society can be exempted from the laws of it:” for if any man may do what he thinks fit, and there be no appeal on earth, for redress or security against any harm he shall do; I ask, whether he be not perfectly still in the state of nature, and so can be no part or member of that civil society: unless any one will say, the state of nature and civil society are one and the same thing, which I have never yet found any one so great a patron of anarchy as to affirm.

  [* ]“The public power of all society is above every soul contained in the same society; and the principal use of that power is, to give laws unto all that are under it, which laws in such cases we must obey, unless there be reason showed which may necessarily inforce, that the law of reason, or of God, doth enjoin the contrary.” Hook. Eccl. Pol. l. i. sect. 16.

  [† ]“To take away all such mutual grievances, injuries and wrongs,” i. e. such as attend men in the state of nature, “there was no way but only by growing into composition and agreement amongst themselves, by ordaining some kind of government public, and by yielding themselves subject thereunto, that unto whom they granted authority to rule and govern, by them the peace, tranquillity, and happy state of the rest might be procured. Men always knew that where force and injury was offered, they might be defenders of themselves; they knew that however men may seek their own commodity, yet if this were done with injury unto others, it was not to be suffered, but by all men, and all good means to be withstood. Finally, they knew that no man might in reason take upon him to determine his own right, and according to his own determination proceed in maintenance thereof, in as much as every man is towards himself, and them whom he greatly affects, partial; and therefore that strifes and troubles would be endless, except they gave their common consent, all to be ordered by some, whom they should agree upon, without which consent there would be no reason that one man should take upon him to be lord or judge over another.” Hooker’s Eccl. Pol. l. i. sect. 10.

  [* ]“At the first, when some certain kind of regiment was once appointed, it may be that nothing was then farther thought upon for the manner of governing, but all permitted unto their wisdom and discretion, which were to rule, till by experience they found this for all parts very inconvenient, so as the thing which they had devised for a remedy, did indeed but increase the sore which it should have cured. They saw, that to live by one man’s will became the cause of all men’s misery. This constrained them to come into laws, wherein all men might see their duty beforehand, and know the penalties of transgressing them.” Hooker’s Eccl. P. lib. i. sect. 10.

  [* ]“Civil law, being the act of the whole body politic, doth therefore over-rule each several part of the same body.” Hooker, ibid.

• Back to Top

  4: COMMON SENSE. ON THE ORIGIN AND DESIGN OF GOVERNMENT IN GEN- ERAL, WITH CONCISE REMARKS ON THE ENGLISH CONSTITUTION. - Thomas Paine, The Writings of Thomas Paine, Vol. I (1774-1779) [1774]

  Thomas Paine, The Writings of Thomas Paine, Collected and Edited by Moncure Daniel Conway (New York: G.P. Putnam’s Sons, 1894). Vol. 1. Chapter: COMMON SENSE. ON THE ORIGIN AND DESIGN OF GOVERNMENT IN GEN- ERAL, WITH CONCISE REMARKS ON THE ENGLISH CONSTITUTION.

  Accessed from oll.libertyfund.org/title/343/17027 on 2009-08-11

  The text is in the public domain.

  ---

  COMMON SENSE.
  ON THE ORIGIN AND DESIGN OF GOVERNMENT IN GEN- ERAL, WITH CONCISE REMARKS ON THE ENGLISH CONSTITUTION.

  Some writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants, and government by our wickedness; the former promotes our happiness possitively by uniting our affections, the latter negatively by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher.

  Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one: for when we suffer, or are exposed to the same miseries by a Government, which we might expect in a country without Government, our calamity is heightened by reflecting that we furnish the means by which we suffer. Government, like dress, is the badge of lost innocence; the palaces of kings are built upon the ruins of the bowers of paradise. For were the impulses of conscience clear, uniform and irresistibly obeyed, man would need no other law-giver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish means for the protection of the rest; and this he is induced to do by the same prudence which in every other case advises him, out of two evils to choose the least. Wherefore, security being the true design and end of government, it unanswerably follows that whatever form thereof appears most likely to ensure it to us, with the least expence and greatest benefit, is preferable to all others.

  In order to gain a clear and just idea of the design and end of government, let us suppose a small number of persons settled in some sequestered part of the earth, unconnected with the rest; they will then represent the first peopling of any country, or of the world. In this state of natural liberty, society will be their first thought. A thousand motives will excite them thereto; the strength of one man is so unequal to his wants, and his mind so unfitted for perpetual solitude, that he is soon obliged to seek assistance and relief of another, who in his turn requires the same. Four or five united would be able to raise a tolerable dwelling in the midst of a wilderness, but one man might labour out the common period of life without accomplishing any thing; when he had felled his timber he could not remove it, nor erect it after it was removed; hunger in the mean time would urge him to quit his work, and every different want would call him a different way. Disease, nay even misfortune, would be death; for though neither might be mortal, yet either would disable him from living, and reduce him to a state in which he might rather be said to perish than to die.

  Thus necessity, like a gravitating power, would soon form our newly arrived emigrants into society, the reciprocal blessings of which would supercede, and render the obligations of law and government unnecessary while they remained perfectly just to each other; but as nothing but Heaven is impregnable to vice, it will unavoidably happen that in proportion as they surmount the first difficulties of emigration, which bound them together in a common cause, they will begin to relax in their duty and attachment to each other: and this remissness will point out the necessity of establishing some form of government to supply the defect of moral virtue.

  Some convenient tree will afford them a State House, under the branches of which the whole Colony may assemble to deliberate on public matters. It is more than probable that their first laws will have the title only of Regulations and be enforced by no other penalty than public disesteem. In this first parliament every man by natural right will have a seat.

  But as the Colony encreases, the public concerns will encrease likewise, and the distance at which the members may be separated, will render it too inconvenient for all of them to meet on every occasion as at first, when their number was small, their habitations near, and the public concerns few and trifling. This will point out the convenience of their consenting to leave the legislative part to be managed by a select number chosen from the whole body, who are supposed to have the same concerns at stake which those have who appointed them, and who will act in the same manner as the whole body would act were they present. If the colony continue encreasing, it will become necessary to augment the number of representatives, and that the interest of every part of the colony may be attended to, it will be found best to divide the whole into convenient parts, each part sending its proper number: and that the elected might never form to themselves an interest separate from the electors, prudence will point out the propriety of having elections often: because as the elected might by that means return and mix again with the general body of the electors in a few months, their fidelity to the public will be secured by the prudent reflection of not making a rod for themselves. And as this frequent interchange will establish a common interest with every part of the community, they will mutually and naturally support each other, and on this, (not on the unmeaning name of king,) depends the strength of government, and the happiness of the governed.

  Here then is the origin and rise of government; namely, a mode rendered necessary by the inability of moral virtue to govern the world; here too is the design and end of government, viz. Freedom and security. And however our eyes may be dazzled with show, or our ears deceived by sound; however prejudice may warp our wills, or interest darken our understanding, the simple voice of nature and reason will say, ‘tis right.

  I draw my idea of the form of government from a principle in nature which no art can overturn, viz. that the more simple any thing is, the less liable it is to be disordered, and the easier repaired when disordered; and with this maxim in view I offer a few remarks on the so much boasted constitution of England That it was noble for the dark and slavish times in which it was erected, is granted. When the world was overrun with tyranny the least remove therefrom was a glorious rescue. But that it is imperfect, subject to convulsions, and incapable of producing what it seems to promise, is easily demonstrated.

  Absolute governments, (tho’ the disgrace of human nature) have this advantage with them, they are simple; if the people suffer, they know the head from which their suffering springs; know likewise the remedy; and are not bewildered by a variety of causes and cures. But the constitution of England is so exceedingly complex, that the nation may suffer for years together without being able to discover in which part the fault lies; some will say in one and some in another, and every political physician will advise a different medicine.

  I know it is difficult to get over local or long standing prejudices, yet if we will suffer ourselves to examine the component parts of the English constitution, we shall find them to be the base remains of two ancient tyrannies, compounded with some new Republican materials.

  First.—The remains of Monarchical tyranny in the person of the King.

  Secondly.—The remains of Aristocratical tyranny in the persons of the Peers.

  Thirdly.—The new Republican materials, in the persons of the Commons, on whose virtue depends the freedom of England.

  The two first, by being hereditary, are independent of the People; wherefore in a constitutional sense they contribute nothing towards the freedom of the State.

  To say that the constitution of England is an union of three powers, reciprocally checking each other, is farcical; either the words have no meaning, or they are flat contradictions.

  To say that the Commons is a check upon the King, presupposes two things.

  First.—That the King is not to be trusted without being looked after, or in other words, that a thirst for absolute power is the natural disease of monarchy.

  Secondly.—That the Commons, by being appointed for that purpose, are either wiser or more worthy of confidence than the Crown.

  But as the same constitution which gives the Commons a power to check the King by withholding the supplies, gives afterwards the King a power to check the Commons, by empowering him to reject their other bills; it again supposes that the King is wiser than those whom it has already supposed to be wiser than him. A mere absurdity!

  There is something exceedingly ridiculous in the composition of Monarchy; it first excludes a man from the means of information, yet empowers him to act in cases where the highest judgment is required. The state of a king shuts him from the World, yet the business of a king requires him to know it thoroughly; wherefore the different parts, by unnaturally opposing and destroying each other, prove the whole character to be absurd and useless.

  Some writers have explained the English constitution thus: the King, say they, is one, the people another; the Peers are a house in behalf of the King, the commons in behalf of the people; but this hath all the distinctions of a house divided against itself; and though the expressions be pleasantly arranged, yet when examined they appear idle and ambiguous; and it will always happen, that the nicest construction that words are capable of, when applied to the description of something which either cannot exist, or is too incomprehensible to be within the compass of description, will be words of sound only, and though they may amuse the ear, they cannot inform the mind: for this explanation includes a previous question, viz. how came the king by a power which the people are afraid to trust, and always obliged to check? Such a power could not be the gift of a wise people, neither can any power, which needs checking, be from God; yet the provision which the constitution makes supposes such a power to exist.

  But the provision is unequal to the task; the means either cannot or will not accomplish the end, and the whole affair is a Felo de se: for as the greater weight will always carry up the less, and as all the wheels of a machine are put in motion by one, it only remains to know which power in the constitution has the most weight, for that will govern: and tho’ the others, or a part of them, may clog, or, as the phrase is, check the rapidity of its motion, yet so long as they cannot stop it, their endeavours will be ineffectual: The first moving power will at last have its way, and what it wants in speed is supplied by time.

  That the crown is this overbearing part in the English constitution needs not be mentioned, and that it derives its whole consequence merely from being the giver of places and pensions is self-evident; wherefore, though we have been wise enough to shut and lock a door against absolute Monarchy, we at the same time have been foolish enough to put the Crown in possession of the key.

  The prejudice of Englishmen, in favour of their own government, by King, Lords and Commons, arises as much or more from national pride than reason. Individuals are undoubtedly safer in England than in some other countries: but the will of the king is as much the law of the land in Britain as in France, with this difference, that instead of proceeding directly from his mouth, it is handed to the people under the formidable shape of an act of parliament. For the fate of Charles the First hath only made kings more subtle—not more just.

  Wherefore, laying aside all national pride and prejudice in favour of modes and forms, the plain truth is that it is wholly owing to the constitution of the people, and not to the constitution of the government that the crown is not as oppressive in England as in Turkey.

  An inquiry into the constitutional errors in the English form of government, is at this time highly necessary; for as we are never in a proper condition of doing justice to others, while we continue under the influence of some leading partiality, so neither are we capable of doing it to ourselves while we remain fettered by any obstinate prejudice. And as a man who is attached to a prostitute is unfitted to choose or judge of a wife, so any prepossession in favour of a rotten constitution of government will disable us from discerning a good one.

• Back to Top

  5: Hume on the Origin of Government

  Source: David Hume, Essays Moral, Political, Literary, edited and with a Foreword, Notes, and Glossary by Eugene F. Miller, with an appendix of variant readings from the 1889 edition by T.H. Green and T.H. Grose, revised edition (Indianapolis: Liberty Fund 1987).

  Accessed from oll.libertyfund.org/index.php?option=com_content&task=view&id=889&Itemid=262 on 2008/7/6

• Back to Top

  6: 1215: Magna Carta

  Source: The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002).

  Accessed from oll.libertyfund.org/index.php?option=com_content&task=view&id=426&Itemid=264 on 2008/7/6

• Back to Top

  7: Mayflower Compact (Agreement Between the Settlers at New Plymouth)

  Short and sweet, don’t read more than the Mayflower Compact.

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: Massachusetts: 3: [Agreement Between the Settlers at New Plymouth] (The Mayflower Compact)

  Accessed from oll.libertyfund.org/title/694/102425 on 2008-08-23

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  3

  [Agreement Between the Settlers at New Plymouth] (The Mayflower Compact)

  The complete text, with original spelling, is taken from the John Carter Brown Library copy of Nathaniel Morton’s New Englands Memoriall (Cambridge [Mass.], 1669); the library has the oldest surviving reprinting of the document. The original document disappeared sometime during the seventeenth century.

  November 11, 1620

  Also known as “The Plymouth Combination,” the Compact was usually referred to by Plymouth inhabitants as “The Combination” and not until 1793 was it termed the “Mayflower Compact,” when it was reprinted for the first time outside of Massachusetts by a historian in New York. The historical context surrounding its writing, as well as an analysis of its contents, can be found in Harry M. Ward, Statism in Plymouth Colony (Port Washington, N.Y.: Kennikat Press, 1973); in Willmoore Kendall and George M. Carey, The Basic Symbols of the American Political Tradition (Baton Rouge: Louisiana State University Press, 1972); and in Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988). Unlike colonies further south such as Virginia, Maryland, Pennsylvania, and the Carolinas where the presence of some settlers of higher social rank produced a natural, legitimate governing class, New England was settled by men of “the middling sort.” In place of a government composed of men of “standing and reputation,” the Pilgrims and other New England settlers resorted to formal agreements, signed by all males, as the basis for legitimate government. For this reason, while southern colonies moved gradually in the same direction, New England settlements immediately formed under what we now recognize as constitutional government based on popular consent. The Mayflower Compact is the oldest surviving compact based on popular consent; but see also documents 5, 7, 11, 12, 19, 21, 23, and 32–38.

  [The Plymouth Combination, or The Mayflower Compact]

  IN the Name of God, Amen. We whose Names are under-written, the Loyal Subjects of our dread Soveraign Lord King James, by the grace of God of Great Britain, France and Ireland, King, Defendorof the Faith &c. Having undertaken for the glory of God, and advancement of the Christian Faith, and the Honour of our K[i]ng and Countrey, a Voyage to plant the first Colony in the Northern parts of Virginia; Do by these Presents, solemnly and mutually, in the presence of God and one another, Covenant and Combine our selves together into a Civil Body Politick, for our better ordering and preservation, and furtherance of the ends aforesaid: and by virtue hereof do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Officers, from time to time, as shall be thought most meet and convenient for the general good of the Colony; unto which we promise all due submission and obedience. In witness whereof we have hereunto subscribed our Names at Cape Cod, the eleventh of November, in the Reign of our Soveraign Lord King James, of England, France and Ireland the eighteenth, and of Scotland the fifty fourth, Anno Dom. 1620.

  John Carver,	Samuel Fuller,	Edward Tilly,
  William Bradford	Christopher Martin,	John Tilly,
  Edward Winslow,	William Mullins,	Francis Cooke,
  William Brewster,	William White,	Thomas Rogers,
  Isaac Allerton,	Richard Warren,	Thomas Tinker,
  Myles Standish,	John Howland,	John Ridgdale,
  John Alden,	Steven Hopkins,	Edward Fuller,
  John Turner,	Digery Priest,	Richard Clark,
  Francis Eaton,	Thomas Williams,	Richard Gardiner,
  James Chilton,	Gilbert Winslow,	John Allerton,
  John Craxton,	Edmund Margesson,	Thomas English,
  John Billington,	Peter Brown	Edward Doten,
  Joses Fletcher,	Richard Britteridge,	Edward Liester.
  John Goodman,	George Soule,

  4

  [Plymouth Oath of Allegiance and Fidelity]

  Text taken from Charles Evans, “Oaths of Allegiance in Colonial New England,” Proceedings of the American Antiquarian Society, n.s., 31 (April 13–October 19, 1921): 383. Text is complete except for the ellipsis inserted by Evans.

  1625

  The Oath of Supremacy, begun by Henry viii to break the power of the Roman Catholic Church, and the Oath of Allegiance, begun by James i in 1605, after the Gunpowder Plot, were both required by Charles i, who reigned from 1625 to 1649. The latter oath did not refer to the king as the head of the church and thus was more acceptable to the Puritans. The Charter of Massachusetts Bay gave the company liberty to admit new members on its own terms. The colony at Plymouth, however, was not, strictly speaking, a colony because it was outside of Massachusetts Bay territory and lacked its own charter. Plymouth took advantage of its position to avoid both the Oath of Supremacy and the Oath of Allegiance by writing its own oath, which did not mention the king but instead created allegiance primarily to the colony. In the absence of a document that explicitly created a polity, such as the Mayflower Compact, an oath such as this one became the covenantal basis for a “civil body politick,” as the Pilgrims put it, and effectively served as both a founding document and a means of naturalizing later arrivals to the colony. Here, as in other similar documents (9, 15, and 16, for example), we find an efficient use of a religious form to implicitly create a civil society, establish and underwrite its legitimacy, define citizenship, provide a means for adding new citizens later, and define a police power, while enunciating a political theory based on popular consent, political equality, and loyalty to the common good of the citizenry.

  form of oath for all inhabitants

  You shall sweare by the name of the great God ... & earth & in his holy fear, & presence that you shall not speake, or doe, devise, or advise, anything or things, acte or acts, directly, or indirectly, By land, or water, that doth, shall, or may, tend to the destruction or overthrowe of this present plantation, Colonie, or Corporation of this towne Plimouth in New England.

  Neither shall you suffer the same to be spoken, or done, but shall hinder & opposse the same, by all due means you can.

  You shall not enter into any league, treaty, Confederace or combination, with any, within the said Colonie or without the same that shall plote, or contrive any thing to the hurte & ruine of the growth, and good of the said plantation.

  You shall not consente to any such confederation, nor conceale any known unto you certainly, or by conje but shall forthwith manifest & make knowne by same, to the Governours of this said towne for the time being.

  And this you promise & swear, simply & truly, & faithfully to performe as a true christian [you hope for help from God, the God of truth & punisher of falshoode].1

  form of the oath given the governor and council at every election

  You shall swear, according to that wisdom, and measure of discerning given unto you; faithfully, equally & indifrently without respect of persons; to administer Justice, in all causes coming before you. And shall labor, to advance, & furder the good of this Colony, & plantation, to the utmost of your power; and oppose any thing that may hinder the same. So help you God.

  5

  [The Salem Covenant of 1629]

  Complete text and spelling taken from Williston Walker, The Creeds and Platforms of Congregationalism (Boston: The Pilgrim Press, 1960), 197.

  Probably the briefest covenant in American history, the Salem document nevertheless presumed that whoever owned it was in total agreement with the Puritan-Calvinistic arm of the English established church. Salem, like many other New England settlements, was initially founded as a popular theocracy—government rested in the hands of church members. Those who did not belong to the settlement’s approved church, originally a group few in number, did not have rights of citizenship. An oath such as this one made one who took it simultaneously a member of the church and a citizen of the polity. Prospective members were subjected to a careful examination as to their knowledge, experience of grace, and godly conversation. Within a few years, as the percentage of nonchurch members grew, conflict within the colony forced the Salem community to draw up the Enlarged Covenant of 1636, which included specific articles encouraging harmony and fellowship (see The Enlarged Salem Covenant [18]). As the number of churched citizens faded into a minority, the form of a church covenant was retained, but the substance of the covenant shifted to become purely political.

  We Covenant with the Lord and one with an other; and doe bynd our selves in the presence of God, to walke together in all his waies, according as he is pleased to reveale himselfe unto us in his Blessed word of truth.

  6

  [Agreement of the Massachusetts Bay Company at Cambridge, England]

  The complete text, with the original spelling, is taken from E. S. Morgan, ed., The Founding of Massachusetts: The Historians and Their Sources (Indianapolis: The Bobbs-Merrill Company, 1964), 183–84.

  August 26, 1629

  Although not written on American shores, the Agreement at Cambridge was written not by any English authorities but by the colonists themselves before embarking. It stands, therefore, in the same category as the Mayflower Compact, which some historians believe was also composed in England before departure and only brought out for signing before debarking in America. The signatures affixed to the following document were put there in England, however.

  The true coppie of the Agreement of Cambridge, August 26. 1629.

  Upon due consideracion of the state of the plantacion now in hand for New England, wherein wee (whose names are hereunto subscribed) have ingaged ourselves: and having weighed the greatnes of the worke in regard of the consequences, Gods glory and the churches good: As also in regard of the difficultyes and discourgements which in all probabilityes must be forcast upon the prosecucion of this businesse: Considering withall that this whole adventure growes upon the joynt confidence we have in each others fidelity and resolucion herein, so as no man of us would have adventured it without assurance of the rest: Now for the better encourragement of ourselves and others that shall joyne with us in this action, and to the end that every man may without scruple dispose of his estate and afayres as may best fitt his preparacion for this voyage, It is fully and faithfully agreed amongst us, and every of us doth hereby freely and sincerely promise and bynd himselfe in the word of a Christian and in the presence of God who is the searcher of all hearts, that we will so really endevour the prosecucion of his worke, as by Gods assistaunce we will be ready in our persons, and with such of our severall familyes as are to go with us and such provisions as we are able conveniently to furnish ourselves withall, to embarke for the said plantacion by the first of march next, at such port or ports of this land as shall be agreed upon by the Company, to the end to passe the Seas (under Gods protection) to inhabite and continue in New England. Provided alwayes that before the last of September next the whole governement together with the Patent for the said plantacion bee first by an order of Court legally transferred and established to remayne with us and others which shall inhabite upon the said plantacion. And provided also that if any shall be hindered by such just and inevitable Lett1 or other cause to be allowed by 3 parts of foure of these whose names are hereunto subscribed, then such persons for such tymes and during such letts to be dischardged of this bond. And we do further promise every one for himselfe that shall fayle to be ready through his owne default by the day appointed, to pay for every dayes defalt the summe of 3 li2 to the use of the rest of the Company who shall be ready by the same day and tyme.

  This was done by order of Court the 29th day of August. 1629.

  • rich: saltonstall
  • tho: dudley
  • william vassall
  • nich: west
  • isaack johnson
  • john humfrey
  • tho: sharp
  • increase nowell
  • john winthrop
  • will: pinchon
  • kellam browne
  • william colbron

  7

  [The Watertown Covenant of July 30, 1630]

  Complete text, with original spelling, taken from Cotton Mather, Magnalia Christi Americana, bk. 3 (London, 1702), 83. For historical context one might consult Champlin Burrage, The Church Covenant Idea: Its Origin and Development (Philadelphia: American Baptist Publication Society, 1904).

  Strictly speaking the Watertown Covenant is a church covenant rather than a political one and was the first collective document made by the Watertown colonists. Those signing it understood the document to be establishing a church-state. Comparison with the Mayflower Compact illustrates how little difference was needed to make a church covenant a true political compact, and, as later compacts illustrate, how the move from church covenant to true political compact was both logical and straightforward.

  July 30, 1630

  We whose Names are hereto subscribed, having through God’s Mercy escaped out of Pollutions of the World, and been taken into the Society of his People, with all Thankfulness do hereby both with Heart and Hand acknowledge, That his Gracious Goodness, and Fatherly Care, towards us: And for further and more full Declaration thereof, to the present and future Ages, have undertaken (for the promoting of his Glory and the Churches Good, and the Honour of our Blessed Jesus, in our more full and free subjecting of our selves and ours, under his Gracious Government, in the Practice of, and Obedience unto all his Holy Ordinances and Orders, which he hath pleased to prescribe and impose upon us) a long and hazardous Voyage from East to West, from Old England in Europe, to New England in America that we may walk before him, and serve him, without Fear in Holiness and Righteousness, all the Days of our Lives: And being safely arrived here, and thus far onwards peaceably preserved by his special Providence, that we bring forth our Intentions into Actions, and perfect our Resolutions, in the Beginnings of some Just and Meet Executions; We have separated the Day above written from all other Services, and Dedicated it wholly to the Lord in Divine Employments, for a Day of Afflicting our Souls, and humbling our selves before the Lord, to seek him, and at his Hands, a Way to walk in, by Fasting and Prayer, that we might know what was Good in his Sight: And the Lord was intreated of us.

  For in the End of the Day, after the finishing of our Publick Duties, we do all, before we depart, solemnly and with all our Hearts, personally, Man by Man for our selves and others (charging them before Christ and his Elect Angels, even them that are not here with us this Day, or are yet unborn, That they keep the Promise unblameably and faithfully unto the coming of our Lord Jesus) Promise, and enter into a sure Covenant with the Lord our God, and before him with one another, by Oath and serious Protestation made, to Renounce all Idolatry and Superstition, Will-Worship, all Humane Traditions and Inventions whatsoever, in the Worship of God; and forsaking all Evil Ways, do give ourselves wholly unto the Lord Jesus, to do him faithful Service, observing and keeping all his Statutes, Commands, and Ordinances, in all Matters concerning our Reformation; his Worship, Administrations, Ministry, and Government; and in the Carriage of our selves among our selves, and one another towards another, as he hath prescribed in his Holy Word. Further swearing to cleave unto that alone, and the true Sense and meaning thereof to the utmost of our Power, as unto the most clear Light and infallible Rule, and All-sufficient Canon, in all things that concern us in this our Way. In Witness of all, we do ex Animo, and in the presence of God, hereto set our Names, or Marks, in the Day and Year above written.

  8

  [Massachusetts Election Agreement]

  Taken from E. S. Morgan, ed., The Founding of Massachusetts: The Historians and Their Sources (Indianapolis: The Bobbs-Merrill Company, 1964), 406. The spelling is Morgan’s.

  May 18, 1631

  Although elections had been held in a number of colonies prior to this date, the Massachusetts Election Agreement is probably the oldest formal colonial provision defining an election process. The “commons” referred to here included all freemen, as clarified by an agreement on May 9, 1632. A “freeman” was one who held town privileges, one of which was the right to live in that town. A “freeholder,” on the other hand, was a freeman who owned a certain amount of land, usually forty or fifty acres. The use of “freeman,” therefore, essentially included all adult males in elections, without any property holding requirement, and established popular sovereignty, representation, political equality, and majority rule.

  For explanation of an order made the last general court, held the 19th of October last, it was ordered now, with full consent of all the commons then present, that once in every year, at least, a general court shall be held, at which court it shall be lawful for the commons to propound any person or persons whom they shall desire to be chosen assistants, and if it be doubtful whether it be the greater part of the commons or not, it shall be put to the poll. The like course to be held when they, the said commons, shall see cause for any defect or misbehavior to remove any one or more of the assistants. And to the end the body of the commons may be preserved of honest and good men, it was likewise ordered and agreed that for time to come no man shall be admitted to the freedom of this body politic but such as are members of some of the churches within the limits of the same.

  9

  The Oath of a Freeman, or of a Man to Be Made Free

  The text is taken from Charles Evans, “Oaths of Allegiance in Colonial New England,” Proceedings of the American Antiquarian Society, n.s., 31 (April 13–October 19, 1921): 389. The spelling is the original, and the text is complete.

  1631

  The law in the Massachusetts Bay Colony that all freemen must be church members was modified in 1632 so that no civil magistrate could be an elder in the church. To give force to this new law an Oath of Freeman was developed. Without the oath, those inhabitants not members of a church would not be bound by the church covenants, and thus not be bound to the colony. In 1634 it was replaced by a newer oath, which took into account the creation of the Massachusetts Legislature in May of 1634 [14]. The replacement oath is reproduced as The Oath of a Freeman, 1634 [15].

  The Oath of a Freeman, or a Man to be Made Free

  I, A.B.&c. being, by the Almighties most wise disposicon, become a membr of this body, consisting of the Gounr, Assistants, & a comnlty of the Mattachusets in Newe England, doe, freely & sincerely acknowledge that I am iustly and lawfully subject to the goumt of the same, & doe accordingly submitt my pson & estate to be ptected, ordered, & gouned by the lawes & constitucons thereof, & doe faithfully pmise to be from time to time obedient & conformeable thervnto, & to the authie of the said Gounr & Assistnts & their successrs, & to all such lawes, orders, sentences, & decrees as shalbe lawfully made & published by them or their successors; and I will alwaies indeavr (as in dutie I am bound) to advance the peace & wellfaire of this bodie or comonwealth to my vtmost skill & abilitie; & will, to my best power & meanes, seeke to devert & prevent whatsoeuer may tend to the ruyne or damage thereof, or of any the said Gounr, Deputy Gounr, or Assistants, or any of them, or their siccessrs, and will giue speedy notice to them, or some of them, of any sedicon, violence, treachery, or other hurt or ciuil which I shall knowe, heare, or vehemtly suspecte to be plotted or intended against the comonwealth, or the said goumt established; and I will not att any time suffer or giue consent to any counsell or attempt that shalbe offered giuen, or attempted for the impeachmt of the said goumt, or makeing any change or alteracon of the same, contrary to the lawes & ordinances thereof, but shall doe my vtmost endeavr to discover, oppose, & hinder, all & euy such counsell & attempts. Soe helpe me God.

  10

  [The Massachusetts Agreement on the Legislature]

  Text taken from N. B. Shurtleff, ed., Massachusetts Colonial Records: Vol. i, Records of the Governor and Company of the Massachusetts Bay Colony in New England, 1628–1686 (Boston, 1853–54), 95–96. For an introductory discussion on this and other colonial documents concerning representation, see Michael Kammen, Deputyes & Libertyes: The Origins of Representative Government in Colonial America (New York: Alfred A. Knopf, 1969).

  May 9, 1632

  The first formal specification of Massachusetts political institutions, this ordinance, passed at a meeting of the General Court, ratifies the existence of the body passing it. Although the document is brief, a careful reading reveals that the basics of a government are established, which makes it a protoconstitution. Note, however, that the colony already has a functioning legislature, which represents an earlier assembly of the people. In this respect it is typical of many early foundation documents in that the legal founding follows the de facto operation of institutions.

  A General Court, holden att Boston, May 9th, 1632

  Present, The Governor,	Mr. Nowell,
  Deputy Governor,	Mr. Pinchon,
  Mr. Ludlowe,	S. Bradstreete

  It was generally agreed upon by erection of hands, that the Governor, Deputy Governor, & Assistants should be chosen by the whole Court of Governor, Deputy Governor, Assistants, & freemen, and that the Governor shall alwaies be chosen out of the Assistants.

  John Winthrop, Esq, was chosen to the place of Governor (by the generall consent of the whole Court, manefested by erection of hands) for this yeare nexte ensueing, & till a newe be chosen, & did, in presence of the Court, take an oath to his said place belonging ...

  It was ordered, that there should be two of every plantation appointed to conferre with the Court about raiseing of a publique stocke ...

  It was ordered, that the towne of Waterton shall have that priviledge and interest in the [fish] weir they have built upp the Charles Ryver, according as the Court hereafter shall thinke meete to confirme unto them.

  11

  [Cambridge Agreement]

  The text is taken from The Records of the Town of Cambridge (Formerly Newtowne) Massachusetts, 1630–1703 (Cambridge: University Press, John Wilson and Son, 1901), 1: 4. The text is complete, with the original spelling.

  December 24, 1632

  Although the institution of the town meeting predates this document and had already been adopted in a number of colonies, this is the oldest surviving agreement establishing the practice. In most instances the town meeting seems to have been adopted without a formal declaration or even a conscious decision. Even here it seems to be not so much a matter of establishing a new procedure as it is a matter of reestablishing it in such a way that attendance can be legally enforced. The present document is notable for two reasons. First, it indicates the deep commitment to democratic processes prevalent in colonial New England. Second, it illustrates the difficulties inherent in democratic processes. A direct democracy that makes popular sovereignty operative on a regular basis places a great burden on citizens—a burden that citizens may tend to avoid without further “incentives.” The inadequacy of such incentives explains the rapid move to representation that the next document [12] exemplifies.

  Ann Agreement made by A Gennerall Conf for a mounthly meeting.

  Impr that every person under subscribed shall meet Every second Monday in Every mounth within the meetinghouse In the Afternoone within half an ouer after the ringing of the bell and that every one that make not his personall apearannce there and continews ther without leave from [   ] untill the meeting bee Ended shall for every default pay twelve pence and if it be not paid next meeting then to dobl it and soe untill it is paid.

  12

  [Dorchester Agreement]

  The text is taken from the Dorchester Town Records: Fourth Report of the Record Commissioners (Boston: Rockwell and Churchill, City Printers, 1880), 3. The original spelling is retained. The text is complete as far as the records of the town are concerned—the gap is in the original.

  October 8, 1633

  In addition to establishing a town meeting, this is the oldest surviving record of a smaller representative body being selected to serve in place of the town meeting between meetings. The members of this smaller representative body were usually called town “selectmen.” Once these representative bodies were established, the fundamental political problem became one of controlling them so they effectively continued to reflect popular will.

  An agreement made by the whole consent and vote of the plantation made Mooneday 8th of October, 1633.

  Inprimus it is ordered that for the generall good and well ordering of the affayres of the Plantation their shall be every Mooneday before the Court by eight of the Clocke in the morning, and prsently upon the beating of the drum, a generall meeting of the inhabitants of the Plantation att the meeteing house, there to settle (and sett downe) such orders as may tend to the generall good as aforesayd; and every man to be bound thereby without gaynesaying or resistance. It is also agreed that there shall be twelve men selected out of the Company that may or the greatest p’t of them meete as aforesayd to determine as aforesayd, yet so as it is desired that the most of the Plantation will keepe the meeting constantly and all that are there although none of the Twelve shall have a free voyce as any of the 12 and that the greate[r] vote both of the 12 and the other shall be of force and efficasy as aforesayd. And it is likewise ordered that all things concluded as aforesayd shall stand in force and be obeyed vntill the next monethly meeteing and afterwardes if it be not contradicted and otherwise ordered upon the sayd monethly meete[ing] by the greatest p’te of those that are prsent as aforesayd. Moreover, because the Court in Winter in the vacansy of the sayd [   ] this said meeting to continue till the first Mooneday in the moneth (7) mr Johnson, mr Eltwid Pummery (mr. Richards), John Pearce, George Hull, William Phelps, Thom. ffoard.

  13

  [Cambridge Agreement on a Town Council]

  The text is taken from The Records of the Town of Cambridge (Formerly Newtowne) Massachusetts, 1630–1703 (Cambridge: University Press, John Wilson and Son, 1901), 1: 11–12. Spelling is the original, and the text complete, except for the undecipherable words, which are indicated by brackets.

  February 3, 1634

  Signed only thirteen months after the town meeting was institutionalized in Cambridge, this document indicates the difficulty that early colonies had with involving the entire population in day-to-day decision making, despite their small size (see The Massachusetts Agreement on the Legislature [10]). The move from a more or less direct democracy to a representative system closely watched by a town meeting was typical for the early colonies. The degree to which the selectmen tended to dominate the political system usually depended on the degree of religious fervor informing the colony. The more tightly religious a colony was, the more likely that the selectmen came from an oligarchy associated with the church; the more heterogeneous and open the social system was, the more likely that the town meeting continued to control the selectmen.

  At A Gennerall Meeting of the whole Towne Itt was Agreed uppon by a Joynt Consent that 7 menn should be Chossen to doe the whole bussines of the Towne and soe to Continew untell the ffirst Monday in November next and untell new be Chossen in their Room soe ther was then Elected and Chossen

  • John Haynes Esqr
  • mr Symon Bradstreet
  • John Taylcott
  • Wiliam Westwood
  • John White
  • William Wadsworth
  • James Olmstead Constable

  Itt is further Ordered by a Joynt Consent that whatsoever these Townsmen thuse Chosse [   ] shall doe In the Compas of ther tyme shall stand in as full force as if the whole Town did the same either for makeing of new orders or altering of ould ones

  ffurther it is ordered that whatsoever prson they shall send for to help anny bussness and he shall refus to Come they shall have power to lay a fine uppon him and to gather [   ]

  ffurther it is ordered that they shall have [   ] to attent uppon them to Imploy aboute any bussines at a publik charge

  ffurther Itt is ordered that they shall meet every first Monday in a Mounth at [   ] in the After Noone accordinge to the former [   ]

  Also ther was Chossen to Joyne [   ] James Olmstead Constable John Beniamen Daniell Denison Andrew Warner William Spencer which 5 acordinge to the order of Cour[t] to survey the Towne lands and enter [   ] a book Apointed for that purpose

  Itt is further ordered that these 5 men meet every first Monday in the Mounth at the Constables house in the [   ] at the Ringing of the bell

  14

  [Massachusetts Agreement on the Legislature]

  From Shurtleff, Massachusetts Colonial Records: Vol. i, 116–20. An explanation of the events surrounding this document can be found in James K. Hosmer, ed., Winthrop’s Journal, vol. 1 (New York, 1908).

  May 14, 1634

  While not a true constitution like the Pilgrim Code of Law [20], to be written two years later, this document contains a number of recognizably constitutional elements. A General Court, or legislature, is formally established, its powers are outlined, the manner of electing its members is described, and the frequency of its meetings is stipulated. The legislature rests ultimately on popular sovereignty, but it appears that sovereignty is passed to the legislature, much as with its apparent model—the British Parliament, and the people retain only their electoral power as the residual of their sovereignty. Even without the indecipherable passages that marred the previous document, parts of the Massachusetts Agreement remain equally obscure. Together with earlier documents, this one illustrates clearly the gradual, fitful evolution of a viable constitutional form. It is of interest that the protoconstitution is written and adopted by the legislature already sitting.

  Att a General Courte, holden at Boston, May 14th, 1634 [   ] it is agreed, that none but the Generall Court hath power to chuse and admitt freemen.

  That none but the Generall Court hath power to make and establishe lawes, nor to elect and appoynt officers, as Governor, Deputy Governor, Assistants, Tresurer, Secretary, Captain, Leiuetenants, Ensignes, or any of like moment, or to remove such upon misdemeanor, as also to sett out the dutyes and powers of the said officers.

  That none but the Generall Court hath power to rayse moneyes & taxes, & to dispose of lands, viz, to give & confirme proprietyes ...

  It was further ordered, that the constable of every plantation shall, upon proces receaved from the Secretary, give tymely notice to the freemen of the plantation where hee dwells to send soe many of their said members as the process shall direct, to attend upon publique service; & it is agreed, that noe tryall shall passe upon any, for life or banishment, but by a jury soe summoned, or by the Generall Courte.

  It is likewise ordered, that there shal be foure Generall Courts held yearely, to be summoned by the Governor, for the tyme being, & not to be dissolved without the consent of the major parte of the Court.

  It was further ordered, that it shal be lawfull for the freemen of every plantation to chuse two or three of each towne before every Generall Court, to confere of & prepare such publique busines as by them shal be thought fitt to consider of at the nexte Generall Court, & that such persons as shal be hereafter soe deputed by the freemen of [the] severall plantations, to deale in their behalfe, in the publique affayres of the commonwealth, shall have the full power and voyces of all the said freemen, deryved to them for the makeing & establishing of Lawes, graunting of lands, etc., & to deale in all other affaires of the commonwealth wherein the freemen have to doe, the matter of election of magistrates & other officers onely excepted, wherein every freeman is to gyve his own voyce ...

  There is leave graunted to the inhabitants of Newe Towne to seek out some convenient place for them, with promise that it shal be confirmed unto them, to which they may remove their habitations, or have as an addition to that which already they have, provided they doe not take it in any place to prejudice a plantation already setled ...

  It was further ordered, that if any Assistant, or any man deputed by the freemen to deale in publique occasions of the commonwealthe, doe absent himselfe without leave in tyme of publique business, hee shal be fined att the discretion of the Court.

  It is further ordered, that in all rates & publique charges, the townes shall have respect to levy every man according to his estate, & with consideration of all other his abilityes, whatsoever, & not according to the number of his persons.

  15

  The Oath of a Freeman

  Text taken from Charles Evans, “Oaths of Allegiance in Colonial New England,” Proceedings of the American Antiquarian Society, n.s., 31 (April 13–October 19, 1921): 394. The text is complete and unaltered.

  May 14, 1634

  This is the oath that replaced the original 1631 version [9], and a comparison of the two is instructive. The earlier version reads as though it creates a subject, whereas this oath, at least in part because it rests on individual consent freely given, reads as though it creates a citizen with political rights and duties. Movement from the mentality of a subject to that of a citizen is one major aspect of a diverging political culture that will by 1776 make Americans and Englishmen political strangers.

  Att a Genrall Courte, holden att Boston, May 14, 1634.

  It was agreed & ordered, that the former oath of ffreemen shalbe revoked, soe farr as it is dissonant from the oath of ffreemen herevnder written, & that those that receaved the former oath shall stand bound noe further thereby, to any intent or purpose, then this newe oath tyes those that nowe takes ye same.

  the oath of a freeman

  I. a.b., being, by Gods providence, an inhabitant & ffreeman within the jurisdiccon of this comonweale, doe freely acknowledge my selfe to be subiect to the govermt thereof, & therefore doe heere sweare, by the greate & dreadfull name of the eurlyving God, that I wilbe true & faithfull to the same, & will accordingly yeilde assistance & support therevnto, with my pson & estate, as in equity I am bound, & will also truely indeavr to mainetaine & preserue all the libertyes & previlidges thereof, submitting my selfe to the wholesome lawes & orders made & established by the same; and furthr, that I will not plott nor practise any evill aginst it, nor consent to any that shall soe doe, but will timely discovery & reveale the same to lawfull aucthority nowe here established, for the speedy preventing thereof. Moreouer, I doe solemnly binde myselfe in the sight of God, that when I shalbe called to giue my voice touching any such matter of this state, wherein ffreemen are to deale I will giue my vote & suffrage, as I shall iudge in myne owne conscience may best conduce & tend to the publique weale of the body, without respect of psons, or favr of any man. Soe helpe mee God in the Lord Jesus Christ.

  Further, it is agreed that none but the Genall Court hath power to chuse and admitt freemen.

  16

  [Salem Oath for Residents]

  Taken from Charles Evans, “Oaths of Allegiance in Colonial New England,” Proceedings of the American Antiquarian Society, n.s., 31 (April 13–October 19, 1921): 393–94. The text is complete and unaltered.

  April 1, 1634

  Although a part of the Massachusetts Bay Colony, Salem established its own town government early in its existence. About the time that the Massachusetts Bay Colony was evolving a more liberal oath, led by Cambridge (see the previous document), Salem was moving in a contrary direction and attempting to exert more careful control over its population. Part of this attempt took the form of requiring even those outside the franchise to take an oath of allegiance to the colony. The following document comprises that oath and should be compared with the Massachusetts Agreement on the Legislature [14].

  At A Court holden att Boston, April 1th, 1634.

  It was further ordered, that euy man of or above the age of twenty yeares, whoe hath bene or shall herefter be resident within this jurisdiccon by the space of six monethes, as an householder or soiorner, and not infranchised, shall take the oath herevnder written, before the Gounr, or Deputy Gounr, or some two of the nexte Assistants, whoe shall haue power to convent1 him for that purpose, and vpon his refuseall the second tyme, hee shalbe banished, except the Court shall see cause to giue him further respite.

  the oath of residents

  I doe heare sweare, and call God to witnes, that, being nowe an inhabitant within the lymitts of this juridiccon of the Massachusetts, I doe acknowledge myselfe lawfully subject to the aucthoritie and gouermt there established, and doe accordingly submitt my pson, family, and estate, to be ptected, ordered, & gouerned by the lawes & constitucons thereof, and doe faithfully pmise to be from time to time obedient and conformeable therevnto, and to the aucthoritie of the Gounr, & all other the magistrates there, and their successrs, and to all such lawes, orders, sentences, decrees, as nowe are or hereafter shalbe lawfully made, decreed, published by them or their successrs. And I will alwayes indeavr (as in duty I am bound) to advance the peace & wellfaire of this body pollitique, and I will (to my best power & meanes) seeke to devert & prevent whatsoeyer may tende to the ruine or damage thereof, or ye Gounr, or Assistants, or any of them or their successrs, and will giue speedy notice to them, or some of them, of any sedicon, violence, treacherie, or othr hurte or euill wch I shall knowe, heare, or vehemently suspect to be plotted or intended against them or any of them, or against the said Comon-wealth or goumt established. Soe helpe mee God.

  17

  [Watertown Agreement on Civil Officers]

  Taken from Watertown Records: First Book, Town Proceedings (Watertown, Mass.: Press of Fred G. Barker, 1894), 1. Spelling is the original, and the text is complete.

  August 23, 1634

  Although at times the records of a colony may have such a richness of expression and content that one gets the impression these settlers did little else but write things down on paper, in most instances the earliest colonial records are quite sketchy. Typically, the first item in the records that survives to our time is brief and dates from a time after the political process was already well under way. The current document is exemplary in this regard. It quite clearly assumes the existence of a community with a functioning town meeting. Thus, while the community is trying to better organize itself, it already has in place a system of direct popular consent that seems not to require any explanation or justification. When reading these documents, it is useful to ask what their authors had to assume in order to write what they did.

  August 23, 1634.

  Agreed by the consent of the Freemen, that there shalbe Chosen three persons to be [   ] the ordering of the civill affaires in the Towne One of them to serve as Towne Clerk, and shall keep the Records and acts of the Towne. The three chosen are William Jennison, Briam Pembleton, John Eddie.

  18

  [The Enlarged Salem Covenant of 1636]

  The complete text and spelling are taken from Williston Walker, The Creeds and Platforms of Congregationalism (Boston: The Pilgrim Press, 1960), 116–18.

  The earlier covenant of 1629 (The Salem Covenant [5]) was apparently found to be inadequate. This “enlarged” version addresses the specific points of dissension that needed to be settled and thus provides a “window” into the colonists’ life as a people. Because Salem in 1636 was a theocracy, what appears here to be essentially religious in nature is also political. It would be a mistake to conclude that these theocracies lacked liberty. For one thing, virtually everyone in Salem was there by choice, and the grounding of that choice was the hope to live as a good Christian. Also, this document reflects the determined attempt to use nongovernmental means of social control. Put another way, to the extent such recovenantings as this one were successful in reining in antisocial behavior, the government did not need to intervene and thus did not intrude on personal liberty. One needs to remember, however, that in colonial America liberty was not grounded in individualism but on a community able to live according to laws based on the consent of its members.

  Gather my Saints together unto me that have made a Covenant with me by sacrifyce. psa. 50:5:

  Wee whose names are here under written, members of the present Church of Christ in Salem, having found by said experience how dangerous it is to sitt loose to the Covenant wee make with our God: and how apt wee are to wander into by pathes, even to the looseing of our first aimes in entring into church fellowship: Doe therefore solemnly in the presence of the Eternall God, both for our own comforts, and those which shall or maybe joyned unto us, renewe that Church Covenant we find this Church bound unto at theire first beginning, viz: That We Covenant with the Lord and one with another; and doe bynd our selves in the prsence of God, to walke together in all his waies, according as he is pleased to reveale himself unto us in his Blessed word of truth. And doe more explicitely in the name and feare of God, profess and protest to walke as followeth through the power and grace of our Lord Jesus.

  1. first wee avowe the Lord to be our God, and our selves his people in the truth and simplicitie of our spirits.

  2. Wee give our selves to the Lord Jesus Christ, and the word of his grace fore the teaching ruleing and sanctifyeing of us in matters of worship, and Conversation, resolveing to cleave to him alone for life and glorie; and oppose all contrarie wayes, cannons and constitutions of men in his worship.

  3. We promise to walk with our brethren and sisters in this Congregation with all watchfullnes and tendernes, avoyding all jelousies, suspitions, backbyteings, censurings, provoakings, secrete risings of spirite against them; but in all offences to follow the rule of the Lord Jesus, and to beare and forbeare, give and forgive as he hath taught us.

  4. In publick or in private, we will willingly doe nothing to the ofence of the Church but will be willing to take advise for our selves and ours as acasion shalbe presented.

  5. Wee will not in the Congregation be forward eyther to shew our gifts or parts in speaking or scrupling, or there discover the fayling of oure brethren or sisters butt atend an orderly cale there unto; knowing how much the Lord may be dishonoured, and his Gospell in the profession of it, sleighted, by our distempers, and weaknesses in publyck.

  6. Wee bynd our selves to studdy the advancement of the Gospell in all truth and peace, both in regard of those that are within, or without, noe way sleighting our sister Churches, but useing theire Counsell as need shalbe: nor laying a stumbling block before any, noe not the Indians, whose good we desire to promote, and soe to converse, as we may avoyd the verrye appearance of evill.

  7. We hearbye promise to carre our selves in all lawfull obedience, to those that are over us, in Church of Commonweale, knowing how well pleasing it will be to the Lord, that they should have incouragement in theire places, by our not greiveing theyre spirites through our Irregularities.

  8. Wee resolve to approve our selves to the Lord in our perticular calings, shunning ydlesness as the bane of any state, nor will we deale hardly, or oppressingly with any, wherein we are the Lord’s stewards.

  9. alsoe promyseing to our best abilitie to teach our children and servants, the knowledg of God and his will, that they may serve him also; and all this, not by any strength of our owne, but by the Lord Christ, whose bloud we desire may sprinckle this our Covenant made in his name.

  19

  [Plymouth Agreement]

  The text is taken from Harry M. Ward, Statism in Plymouth Colony (Port Washington, N.Y.: Kennikat Press, 1973), 17. His text is complete, and his spelling and marking are used.

  November 15, 1636

  One might compare this text with the second paragraph of the Pilgrim Code of Law [20] where a version of the Plymouth Agreement was inserted as part of the preface. It is interesting that the paragraph in the Pilgrim Code of Law where this agreement was inserted indicates that both the Mayflower Compact (Plymouth Combination) and the original charter from King Charles (the letters-patent) compose the legal background to what is here identified as the Plymouth Agreement of 1636. This efficient and powerful statement of political liberty should be laid between the Mayflower Compact and the Declaration of Independence (1776) for comparison. When we read the entire Declaration of Independence, its status as a later differentiation of the symbols found in the Plymouth Agreement becomes apparent, just as the Mayflower Compact obviously stands as a precursor.

  We, the associates of New-Plymouth Coming hither as freeborn subjects of the State of England endowed with all and singular the privileges belonging to such being assembled; doe ordaine Constitute and enact that noe act imposition law or ordinance be made or imposed upon us at present, or to come but such as shall be imposed by Consent of the body of associates or their representatives legally assembled; which is according to the free liberties of England.

  20

  [Pilgrim Code of Law]

  The original text of this document can be found in N. B. Shurtleff and David Pulsifer, eds., Records of the Colony of New Plymouth in New England: Vol. i, The Laws, 1623–1682 (Boston: The Press of William White, 1861), 6–12. The original is in a shorthand that is particularly tortuous even for the times in which it was written. The emended version of the text here is consistent with that found in W. Keith Kavenaugh, ed., Foundations of Colonial America: A Documentary History (New York: Chelsea House, 1973), 1: 247–51.

  November 15, 1636

  Much more than a code of law, this document lays out the fundamental values and political institutions of the community and is a candidate for the honor of being the first true written constitution in the modern world. It was revised in 1658 and then again in 1671. The text should be read carefully, in the context of earlier documents. On the one hand, the Pilgrim Code of Law reflects the attempt to recreate locally the English parliamentary form in a manner consistent with the provisions of its charter from the king. On the other hand, the quiet assumption of local popular sovereignty, reflected in an elected governor as well as in the inclusion of the Plymouth Agreement and the covenantal elements, is consistent with the evolving colonial political symbols going back to the Mayflower Compact. The blending of English and American forms will continue to characterize American constitutionalism. Of particular note, Plymouth Colony is by this time composed of several separate towns, so the document also establishes a federal system of government among those towns whereby each town continues to have its own assembly and officials at the same time there exists an elected colony-wide government as described here.

  Whereas, at his Majesty’s court held the fourth and fifth of October in the twelfth year of the reign of our sovereign lord Charles, by the grace of God, King of England, Scotland, France, and Ireland, Defender of the Faith, etc., it was ordered that Major William Brewster, Major Ralph Smith, Major John Done, and John Jenny for the town of Plymouth, Jonathan Brewster and Christopher Wadsworth for Duxborough, and James Cudworth and Anthony Annable for Scittuate should be added to the governor and assistants as committees for the whole body of this commonweal, should meet together the 15th of November at Plymouth, above-mentioned, and there to peruse all the laws, orders, and constitutions of the plantations within this government that so those that are still fitting might be established, those that time has made unnecessary might be rejected, and others that were wanting might be prepared that so the next court they might be established.

  Now being assembled according to the said order, and having read the combination made at Cape Cod the 11th of November 1620 in the year of the reign of our late sovereign lord King James of England, France, Ireland, the eighteenth, and of Scotland the fifty-fourth, as also our letters patents confirmed by the honorable council, his said Majesty established and granted the 13th of January 1629 in the fifth year of the reign of our sovereign lord King Charles, and finding that, as freeborn subjects of the state of England, we hither came endowed with all and singular the privileges belonging to such, in the first place we think good that it be established for an act that, according to the ... and due privileges of the subject aforesaid, no imposition, law, or ordinance be made or imposed upon us by ourselves or others at present or to come but such as shall be made or imposed by consent, according to the free liberties of the state and kingdom of England and no otherwise.

  That whereas, before expressed, we find a solemn and binding combination as also letters patent derivatory from his Majesty of England, our dread sovereign, for the ordering of a body politic within the several limits of this patent, viz., from Cowahasset to the utmost bounds of Puckanokick westward, and all that tract of land southward to the southern ocean, with all and singular lands, rivers, havens, waters, creeks, ports, fishing, fowlings, etc., by virtue whereof we ordain, institute, and appoint the first Tuesday in March every year for the election of such officers as shall be thought meet for the guiding and government of this corporation.

  This is altered afterwards to the first Tuesday in June yearly by a general court.

  That at the day and time appointed a governor and seven assistants be chosen to rule and govern the said plantations within the said limits for one whole year and no more; and this election to be made only by the freemen according to the former custom. And that then also constables for each part and other inferior officers be also chosen.

  That in every election some one of the assistants, or some other sufficient person, be chosen treasurer for the year present, whose place it shall be to receive in whatsoever sum or sums shall appertain to the royalty of the place, either coming in by way of fine, amercement, or otherwise, and shall improve the same for the public benefit of this corporation by order of the government; as also to give a just account thereof to the ensuing treasurer and to the governor whenever he shall demand it, or the court when they appoint.

  That a clerk of the court also be chosen for the year.

  That also one be chosen to the office of coroner to be executed as near as may be to the laws and practice of the kingdom of England, and to continue one year.

  the office of the governor

  The office of the governor for the time being consists in the execution of such laws and ordinances as are or shall be made and established for the good of this corporation according to the several bounds and limits thereof; viz., in calling together or advising with the assistants or council of the said corporation upon such material occasions, or so seeming to him, as time shall bring forth; in which assembly, and all other, the governor to propound the occasion of the assembly and have a double voice therein. If the assistants judge the case too great to be decided by them and refer it to the general court, then the governor to summon a court by warning all the freemen aforesaid that are then extant, and there also to propound causes, and go before the assistants in the examination of particulars, and to propound such sentence as shall be determined. Further, it shall be lawful for him to arrest and committ to ward any offenders provided that with all convenient speed he shall bring the cause to hearing either of the assisstants or general court, according to the nature of the offense. Also, it shall be lawful for him to examine any suspicious persons for evil against the colony, as also to intercept or oppose such as he conceives may tend to the overthrow of the same. And that this office continue one whole year and no more without renewing by election.

  the oath of the governor

  You shall swear to be truly loyal; also, according to that measure of wisdom, understanding, and discerning given unto you faithfully, equally, and indifferently, without respect of persons, to administer justice in all cases coming before you as the governor of New Plymouth. You shall, in like manner, faithfully, duly, and truly execute the laws and ordinances of the same, and shall labor to advance and further the good of the colonies and plantations within the limits thereof to the utmost of your power and oppose any thing that shall seem to hinder the same. So help you God, who is the God of truth and punisher of falsehood.

  the oath of a freeman

  You shall be loyal. You shall not speak or do, devise or advise anything or things, act or acts, directly or indirectly, by land or water, that does, shall, or may tend to the destruction or overthrow of this present plantation, colony, or corporation of New Plymouth, neither shall you suffer the same to be spoken or done, but shall hinder, oppose, and discover the same to the governor and assistants of the said colony for the time being, or some one of them. You shall faithfully submit to such good and wholesome laws and ordinances as either are or shall be made for the ordering and government of the same, and shall endeavor to advance the growth and good of the several plantations within the limits of this corporation by all due means and courses. All which you promise and swear by the name of the great God of heaven and earth, simply, truly, and faithfully to perform as you hope for help from God, who is the God of truth and punisher of falsehood.

  the office of an assistant

  The office of an assistant for the time being consists in appearing at the governor’s summons, and in giving his best advice both in public court and private council with the governor for the good of the colonies within the limits of this government; not to disclose, but keep secret, such things as concern the public good and shall be thought meet to be concealed by the governor and council of assistants in having a special hand in the examination of public offenders and in contriving the affairs of the colony; to have a voice in the censuring of such offenders as shall not be brought to public court; that if the governor has occasion to be absent from the colony for a short time, by the governor, with consent of the rest of the assistants, he may be deputed to govern in the absence of the governor. Also, it shall be lawful for him to examine and commit to ward where any occasion arises where the governor is absent, provided the person be brought to further hearing with all convenient speed before the governor or the rest of the assistants. Also, it shall be lawful for him in his Majesty’s name to direct his warrants to any constable within the government, who ought faithfully to execute the same according to the nature and tenure thereof; and may bind over persons for matters of crime to answer at the next ensuing court of his Majesty after the fact committed or the person apprehended.

  the oath of the assistants

  You shall all swear to be truly loyal to our sovereign lord King Charles, his heirs and successors. Also, you shall faithfully, truly, and justly, according to that measure of discerning and discretion God has given you, be assistant to the governor for his present year for the execution of justice in all cases and towards all persons coming before you without partiality, according to the nature of the office of an assistant read to you. Moreover, you shall diligently, duly, and truly see that the laws and ordinances of this corporation be faithfully executed; and shall labor to advance the good of the several plantations within the limits thereof and oppose anything that shall hinder the same by all due means and courses. So help you God, who is the God of truth and punisher of falsehood.

  the oath of any residing within the government

  You shall be truly loyal to our sovereign lord King Charles, his heirs and successors. And whereas you make choice at present to reside within the government of New Plymouth, you shall not do, or cause to be done, any act or acts, directly or indirectly, by land or water, that shall or may tend to the destruction or overthrow of the whole or any of the several colonies within the said government that are or shall be orderly erected and established, but shall, contrariwise, hinder, oppose, and discover such intents and purposes as tend thereunto to the governor for the time being, or some one of the assistants with all convenient speed. You shall also submit to and obey such good and wholesome laws, ordinances, and officers as are or shall be established within the several limits thereof. So help you God, who is the God of truth and punisher of falsehood.

  the oath of a constable

  You shall swear to be truly loyal to our sovereign lord King Charles, his heirs and successors, which you shall faithfully serve in the office of a constable in the ward of ... for this present year according to that measure of wisdom understanding and discretion God has given you. In which time you shall diligently see that his Majesty’s peace commanded be not broken, but shall carry the person or persons offending before the governor of this corporation, or some one of his assistants, and there attend the hearing of the case and such order as shall be given you. You shall apprehend all suspicious persons and bring them before the said governor, or someone of his assistants, as aforesaid. You shall duly and truly serve such warrants and give such summons as shall be directed to you from the governor or assistants before mentioned, and shall labour to advance the peace and happiness of this corporation and oppose any thing that shall seem to annoy the same, by all due means and courses. So help you God, who is the God of truth and punishment of falsehood.

  That the annual election of officers before expressed be at a general court held in his Majesty’s name of England. And that the governor in due season, by warrant directed to the several constables in his Majesty’s name aforesaid, give warning to the freemen to make their appearance; and that all other our courts, warrants, summons, or commands by way of justice be all done, directed, and made in the name of his Majesty of England aforesaid, our dread sovereign.

  And for default in case of appearance at the election before mentioned, without due excuse, each delinquent to be amerced in three shillings sterling.

  That if at any time any shall be elected to the office of governor and will not hold according to the election that then he be amerced in twenty pounds sterling fine.

  That if any elected to the office of assistant refuse to hold according to election that then he be amerced in ten pounds sterling fine.

  That in case one and the same person should be elected governor a second year, having held the place the foregoing year, it should be lawful for him to refuse without amercement unless they can prevail with him by entreaty.

  That the government, viz., the general courts and courts of assistants, be held at Plymouth, and that the governor hold his dwelling there for the present year, except such inferior courts as for some matters shall be allowed by this court in other places of this government.

  It is enacted that no presentment hereafter shall be exhibited to the grand inquest to be brought to the bench except it be done upon oath, and that it shall be lawful for any of the assistants to administer an oath in such case.

  That the constable see the highways for man and beast be made and kept in convenient repair, and therefore be also appointed surveyor for the liberty he is chosen. That two surveyors in every constablerick be chosen each year to see that the highways be mended competently. And if it fall out that a way be wanting upon due complaint, that then the governor panel a jury and upon oath charge them to lay out such way as in conscience they find most beneficial for the commonweal and as little prejudice as may be to the particular.

  That the laws and ordinances of the colony and for the government of the same be made only by the freemen of the corporation and no other; provided, that in such rates and taxations as are or shall be laid upon the whole they be without partiality so as the freemen be not spared for his freedom, but the levy be equal. And in case any man finds himself aggrieved that his complaint may be heard and redressed if there be due cause.

  That an oath of allegiance to the King and fidelity to the government and the several colonies therein be taken of every person that shall live within or under the same.

  That all trials, whether capital or between man and man, be tried by juries according to the precedents of the law of England, as near as may be.

  That the governor and two assistants, at the least, shall, as occasion shall be offered in time convenient, determine in such trivial cases, viz., under forty shillings between man and man, as shall come before them: as also in offense of small nature shall determine, do, and execute as in wisdom God shall direct them.

  21

  [Dedham Covenant]

  The text is taken from Kenneth A. Lockridge, A New England Town: The First Hundred Years (New York: W. W. Norton and Company, 1970), 4–7. Lockridge in turn drew his text from Early Records of the Town of Dedham: iii, Town and Selectmen, 1636–1659 (Dedham, Mass., 1886–1936), 2–3. Lockridge has modernized the spelling and provides only a partial text.

  1636

  Once again we see an attempt to minimize the need for governmental intrusion into community affairs. In this instance section 3 lays out a process of mediation to regulate social conflict. Whereas section 2 reflects determination to maintain a homogeneous community with respect to values, section 3 reflects a willingness to admit newcomers on an equal footing if they subscribe to the shared community values.

  One: We whose names are here unto subscribed do, in the fear and reverence of our Almighty God, mutually and severally promise amongst ourselves and each other to profess and practice one truth according to that most perfect rule, the foundation whereof is everlasting love.

  Two: That we shall by all means labor to keep off from us all such as are contrary minded, and receive only such unto us as may be probably of one heart with us, [and such] as that we either know or may well and truly be informed to walk in a peacable conversation with all meekness of spirit, [this] for the edification of each other in the knowledge and faith of the Lord Jesus, and the mutual encouragement unto all temporal comforts in all things, seeking the good of each other out of which may be derived true peace.

  Three: That if at any time differences shall rise between parties of our said town, that then such party or parties shall presently refer all such differences unto some one, two, or three others of our said society to be fully accorded and determined without any further delay, if it possibly may be.

  Four: That every man that ... shall have lots [and] in our said town shall pay his share in all such ... charges as shall be imposed on him ..., as also become freely subject unto all such orders and constitutions as shall be ... made now or at any time hereafter from this day forward, as well for loving and comfortable society in our said town as also for the prosperous and thriving condition of our said fellowship, especially respecting the fear of God, in which we desire to begin and continue whatsoever we shall by his loving favor take into hand.

  Five: And for the better manifestation of our true resolution herein, every man so received into the town is to subscribe hereunto his name, thereby obliging both himself and his successors after him forever, as we have done.

  22

  [The Massachusetts Body of Liberties]

  Complete text, with original spelling, taken from S. Whitmore, Bibliographical Sketch of the Laws of Massachusetts Colony (1889), 32–60.

  December 1641

  By 1641 the colony had existed long enough to require a systematic summary of the laws already enacted, which would also serve as a bulwark against arbitrary government. The General Court adopted a code that was proposed by Nathaniel Ward of Ipswitch. As a devout Puritan and a former lawyer in England, Ward drew heavily on the code of law proposed by John Cotton in 1636, which was based on Mosaic principles, and on the English common law. The result of this blend was the Massachusetts Body of Liberties, one of the most important and underappreciated documents in American history. The U.S. Bill of Rights a century and a half later would contain twenty-six specific rights in its ten provisions. At most, seven of these rights can be traced to Magna Carta, the English Petition of Right (1628), or the English Bill of Rights (1689). Seven others can be traced in their origin to the Massachusetts Body of Liberties, which also included the seven English-originated rights and four more rights that were first codified in Massachusetts prior to 1641. All but three of the remaining rights in the U.S. Bill of Rights would originate in other colonial documents.1 The Massachusetts Body of Liberties, however, did not make these rights explicitly inalienable in that they could be altered by the legislature—this differentiation remained for the future. Still, Massachusetts did not abandon these rights in its later codes, and the egalitarian nature of the Body of Liberties contrasted sharply with English common law in 1641, when different parts of the population had differing rights. The Massachusetts Body of Liberties is considered the first postmedieval, or modern, bill of rights.

  A Coppie of the Liberties of the Massachusets Collonie in New England

  The free fruition of such liberties Immunities and priveledges as humanitie, Civilitie, and Christianitie call for as due to every man in his place and proportion; without impeachment and Infringement hath ever bene and ever will be the tranquillitie and Stabilitie of Churches and Commonwealths. And the deniall or deprivall thereof, the disturbance if not the ruine of both.

  We hould it therefore our dutie and safetie whilst we are about the further establishing of this Government to collect and expresse all such freedomes as for present we foresee may concerne us, and our posteritie after us, And to ratify them with our sollemne consent.

  Wee doe therefore this day religiously and unanimously decree and confirme these following Rites, liberties, and priveledges concerneing our Churches, and Civill State to be respectively impartiallie and inviolably enjoyed and observed throughout our Jurisdiction for ever.

  1. No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, no man shall be deprived of his wife or children, no mans goods or estaite shall be taken away from him, nor any way indammaged under Coulor of law, or Countenance of Authoritie, unlesse it be by vertue or equitie of some expresse law of the Country warranting the same, established by a generall Court and sufficiently published, or in case of the defect of a law in any partecular case by the word of god. And in Capitall cases, or in cases concerning dismembring or banishment, according to that word to be judged by the Generall Court.

  2. Every person within Jurisdiction, whether Inhabitant or forreiner shall enjoy the same justice and law, that is generall for the plantation, which we constitute and execute one towards another, without partialitie or delay.

  3. No man shall be urged to take any oath or subscribe any articles, covenants or remonstrance, of a publique and Civill nature, but such as the Generall Court hath considered, allowed, and required.

  4. No man shall be punished for not appearing at or before any Civill Assembly, Court, Councell, Magistrate, or officer, nor for the omission of any office or service, if he shall be necessarily hindred, by any apparent Act or providenc of god, which he could neither foresee nor avoid. Provided that this law shall not prejudice any person of his just cost or damage in any civill action.

  5. No man shall be compelled to any publique worke or service unlesse the presse be grounded upon some act of the generall Court, and have reasonable allowance therefore.

  6. No man shall be pressed in person to any office, worke, warres, or other publique service, that is necessarily and suffitiently exempted by any naturall or personall impediment, as by want of yeares, greatnes of age, defect of minde, fayling of sences, or impotencie of Lymbes.

  7. No man shall be compelled to goe out of the limits of this plantation upon any offensive warres which this Commonwealth or any of our freinds or confederats shall volentarily undertake. But onely upon such vindictive and defensive warres in our owne behalfe, or the behalfe of our freinds, and confederats as shall be enterprized by the Counsell and consent of a Court generall, or by Authority derived from the same.

  8. No mans Cattell or goods of what kinde soever shall be pressed or taken for any publique use or service, unlesse it be by warrant grounded upon some act of the generall Court, nor without such reasonable prices and hire as the ordinarie rates of the Countrie do afford. And if his Cattle or goods shall perish or suffer damage in such service, the owner shall be suffitiently recompenced.

  9. No monoplies shall be granted or allowed amongst us, but of such new Inventions that are profitable to the Countrie, and that for a short time.

  10. All our lands and heritages shall be free from all finds and licences upon Alienations, and from all hariotts,2 wardships, Liveries,3 Primerseisens,4 yeare day and wast, Escheates,5 and forfeitures, upon the deaths of parents, or Ancestors, be they naturall, casuall, or Juditiall.

  11. All persons which are of the age of 21 yeares, and of right understanding and meamories, whether excommunicate or condemned shall have full power and libertie to make theire wills and testaments, and other lawfull alienations of theire lands and estates.

  12. Every man whether Inhabitant or fforreiner, free or not free shall have libertie to come to any publique Court, Councell, or Towne meeting, and either by speech or writeing to move any lawful, seasonable, and materiall question, or to present any necessary motion, complaint, petition, Bill or information, whereof that meeting hath proper cognizance, so it be done in convenient time, due order, and respective manner.

  [13.] No man shall be rated here for any estaite or revenue he hath in England, or in any forreine parties till it be transported hither.

  [14.] Any conveyance or Alienation of land or other estaite what so ever, made by any woman that is married, any childe under age, Ideott, or distracted person, shall be good, if it be passed and ratified by the consent of a generall Court.

  15. All Covenous or fraudulent Alienations or Conveyances of lands, tenements, or any hereditaments, shall be of no validitie to defeate any man from due debts or legacies, or from any just title, clame or possession, of that which is so fradulently conveyed.

  16. Every Inhabitant that is an howse holder shall have free fishing and fowling in any great ponds and Bayes, Coves and Rivers, so farre as the sea ebbes and flowes within the presincts of the towne where they dwell, unlesse the freemen of the same Towne or the Generall Court have otherwise appropriated them, provided that this shall not be extended to give leave to any man to come upon other proprietie without there leave.

  17. Every man of or within this Jurisdiction shall have free libertie, not with standing any Civill power to remove both himselfe, and his familie at their pleasure out of the same, provided there be no legall impediment to the contrarie.

  18. No mans person shall be restrained or imprisoned by any Authority what so ever, before the law hath sentenced him thereto, If he can put in sufficient securitie, bayle, or mainprise, for his appearance, and good behaviour in the meane time, unlesse it be in Crimes Capitall, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it.

  19. If in a generall Court any miscariage shall be amongst the Assistants when they are by themselves that may deserve an Admonition or fine under 20 sh, it shall be examined and sentenced amongst themselves, If amongst the Deputies when they are by themselves, It shall be examined and sentenced amongst themselves, If it be when the whole Court is togeather, it shall be judged by the whole Court, and not severallie as before.

  20. If any which are to sit as Judges in any other Court shall demeane themselves offensively in the Court, the rest of the Judges present shall have power to censure him for it, if the cause be of a high nature it shall be presented to and censured at the next superior Court.

  21. In all cases where the first summons are not served six dayes before the Court, and the cause briefly specified in the warrant, where appearance is to be made by the partie summoned, it shall be at his libertie whether he will appeare or not, except all cases that are to be handled in Courts suddainly called upon extraordinary occasions, In all cases where there appeares present and urgent cause Any Assistant or officer apointed shal have power to make out Attaichments for the first summons.

  22. No man in any suit or action against an other shall falsely pretend great debts or damages to vex his Adversary, if it shall appeare any doth so, The Court shall have power to set a reasonable fine on his head.

  23. No man shall be adjudged to pay for detaining any Debt from any Crediter above eight pounds in the hundred for one yeare, And not above that rate proportionable for all somes what so ever, neither shall this be a coulour or countenance to allow any usurie amongst us contrarie to the law of god.

  24. In all Trespasses or damages done to any man or men, If it can be proved to be done by the meere default of him or them to whome the trespasse is done, It shall be judged no trespasse, nor any damage given for it.

  25. No Summons pleading Judgement, or any kinde of proceeding in Court or course of Justice shall be abated, arested, or reversed, upon any kinde of cercumstantiall errors or mistakes, If the person and cause be rightly understood and intended by the Court.

  26. Every man that findeth himselfe unfit to plead his owne cause in any Court, shall have Libertie to imploy any man against whom the Court doth not except, to helpe him, Provided he give him noe fee, or reward for his paines. This shall not exempt the partie him selfe from Answering such Questions in person as the Court shall thinke meete to demand of him.

  27. If any plaintife shall give into any Court a declaration of his cause in writeing, The defendant shall also have libertie and time to give in his answer in writeing, And so in all further proceedings betwene partie and partie, So it doth not further hinder the dispach of Justice then the Court shall be willing unto.

  28. The plaintife in all Actions brought in any Court shall have libertie to withdraw his Action, or to be nonsuited before the Jurie hath given in their verdict, in which case he shall alwaies pay full cost and chardges to the defendant, and may afterwards renew his suite at an other Court if he please.

  29. In all Actions at law it shall be the libertie of the plaintife and defendant by mutual consent to choose whether they will be tryed by the Bench or by a Jurie, unlesse it be where the law upon just reason hath otherwise determined. The like libertie shall be granted to all persons in Criminall cases.

  30. It shall be in the libertie both of plaintife and defendant, and likewise every delinquent (to be judged by a Jurie) to challenge any of the Jurors. And if his challenge be found just and reasonable by the Bench, or the rest of the Jurie, as the challenger shall choose it shall be allowed him, and tales de cercumstantibus impaneled in their room.

  31. In all cases where evidence is so obscure or defective that the Jurie cannot clearely and safely give a positive verdict, whether it be a grand or petit Jurie, It shall have libertie to give a non Liquit, or a spetiall verdict, in which last, that is in a spetiall veredict, the Judgement of the cause shall be left to the Court, and all Jurors shall have libertie in matters of fact if they cannot finde the maine issue, yet to finde and present in their verdict so much as they can, If the Bench and Jurors shall so differ at any time about their verdict that either of them can not proceed with peace of conscience the case shall be referred to the Generall Court, who shall take the question from both and determine it.

  32. Every man shall have libertie to replevy his Cattell or goods impounded, distreined, seised, or extended, unless it be upon execution after Judgement, and in paiment of fines. Provided he puts in good securitie to prosecute his replevin, And to satisfie such demands as his Adversary shall recover against him in Law.

  33. No mans person shall be Arrested, or imprisoned upon execution or judgment for any debt or fine, if the law can finde competent meanes of satisfaction otherwise from his estaite, And if not his person may be arrested and imprisoned where he shall be kept at his owne charge, not the plaintife’s till satisfaction be made: unlesse the Court that had cognizance of the cause or some superior Court shall otherwise provide.

  34. If any man shall be proved and Judged a common Barrator vexing others with unjust frequent and endlesse suites, It shall be in the power of Courts both to denie him the benefit of the law, and to punish him for his Barratry.

  35. No mans Corne nor hay that is in the field or upon the Cart, nor his garden stuffe, nor any thing subject to present decay, shall be taken in any distresse, unles he that takes it doth presently bestow it where it may not be imbesled nor suffer spoile or decay, or give securitie to satisfie the worth thereof if it comes to any harme.

  36. It shall be in the libertie of every man cast condemned or sentenced in any cause in any Inferior Court, to make their Appeale to the Court of Assistants, provided they tender their appeale and put in securitie to prosecute it before the Court be ended wherein they were condemned, And within six dayes next ensuing put in good securitie before some Assistant to satisfie what his Adversarie shall recover against him; And if the cause be of a Criminall nature, for his good behaviour and appearance, And everie man shall have libertie to complaine to the Generall Court of any Injustice done him in any Court of Assistants or other.

  37. In all cases where it appeares to the Court that the plaintife hath willingly and witingly done wronge to the defendant in commenceing and prosecuting any action or complaint against him, They shall have power to impose upon him a proportionable fine to the use of the defendant, or accused person, for his false complaint or clamor.

  38. Everie man shall have libertie to Record in the publique Rolles of any Court any Testimony give[n] upon oath in the same Court, or before two Assistants, or any Deede or evidence legally confirmed there to remaine in perpetuam rei memoriam, that is for perpetuall memoriall or evidence upon occasion.

  39. In all Actions both reall and personall betweene partie and partie, the Court shall have power to respite execution for a convenient time, when in their prudence they see just cause so to doe.

  40. No Conveyance, Deede, or promise what so ever shall be of validitie, If it be gotten by Illegal violence, imprisonment, threatenings, or any kinde of forcible compulsion called Dures.

  41. Everie man that is to Answere for any Criminall cause, whether he be in prison or under bayle, his cause shall be heard and determined at the next Court that hath proper Cognizance thereof, And may be done without prejudice of Justice.

  42. No man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse.

  43. No man shall be beaten with above 40 stripes, nor shall any true gentleman, nor any man equall to a gentleman be punished with whipping, unless his crime be very shamefull, and his course of life vitious and profligate.

  44. No man condemned to dye shall be put to death within fower dayes next after his condemnation, unles the Court see spetiall cause to the contrary, or in case of martiall law, nor shall the body of any man so put to death be unburied 12 howers, unlesse it be in case of Anatomie.

  45. No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be in some Capitall case where he is first fullie convicted by cleare and suffitient evidence to be guilty, After which if the cause be of that nature, That it is very apparent there be other conspiratours, or confederates with him, Then he may be tortured, yet not with such Tortures as be Barbarous and inhumane.

  46. For bodilie punishments we allow amongst us none that are inhumane Barbarous or cruell.

  47. No man shall be put to death without the testimony of two or three witnesses, or that which is equivalent there unto.

  48. Every Inhabitant of the Countrie shall have free libertie to search and veewe any Rooles, Records, or Regesters of any Court or office except the Councell, And to have a transcript or exemplification thereof written examined, and signed by the hand of the officer of the office paying the appointed fees therefore.

  49. No free man shall be compelled to serve upon Juries above two Courts in a yeare, except grand Jurie men, who shall hould two Courts together at the least.

  50. All Jurors shall be chosen continuallie by the freemen of the Towne where they dwell.

  51. All Associates selected at any time to Assist the Assistants in Inferior Courts, shall be nominated by the Townes belonging to that Court, by orderly agreement amonge themselves.

  52. Children, Idiots, Distracted persons, and all that are strangers, or new commers to our plantation, shall have such allowances and dispensations in any cause whether Criminall or other as religion and reason require.

  53. The age of discretion of passing away of lands or such kinde of herediments, or for giveing of votes, verdicts or Sentence in any Civill Courts or causes, shall be one and twentie yeares.

  54. When so ever anything is to be put to vote, any sentence to be pronounced, or any other matter to be proposed, or read in any Court or Assembly, If the president or moderator thereof shall refuse to performe it, the Major parte of the members of that Court or Assembly shall have power to appoint any other meete man of them to do it, And if there be just cause to punish him that should and would not.

  55. In all suites or Actions in any Court, the plaintife shall have libertie to make all the titles and claims to that he sues for he can. And the Defendant shall have libertie to plead all the pleas he can in answere to them, and the Court shall judge according to the intire evidence of all.

  56. If any man shall behave himselfe offensively at any Towne meeting, the rest of the freemen then present, shall have power to sentence him for his offence, So be it the mulct or penaltie exceed not twentie shilings.

  57. When so ever any person shall come to any very suddaine untimely and unnaturall death, Some Assistant, or the Constables of that Towne shall forthwith sumon a Jury of twelve free men to inquire of the cause and manner of their death, and shall present a true verdict thereof to some neere Assistant, or the next Court to be helde for that Towne upon their oath.

  liberties more peculiarlie concerning the free men.

  58. Civill Authoritie hath power and libertie to see the peace, ordinances and Rules of Christ observed in every church according to his word, so it be done in a Civill and not in an Ecclesiastical way.

  59. Civill Authoritie hath power and libertie to deale with any Church member in a way of Civill Justice, notwithstanding any Church relation, office, or interest.

  60. No church censure shall degrade or depose any man from any Civill dignitie, office, or Authoritie he shall have in the Commonwealth.

  61. No Magestrate, Juror, Officer, or other man shall be bound to informe present or reveale any private crim or offence, wherein there is no perill or danger to this plantation or any member thereof, when any necessarietye of conscience binds him to secresie grounded upon the word of god, unlesse it be in case of testimony lawfully required.

  62. Any Shire or Towne shall have libertie to choose their Deputies whom and where they please for the General Court, So be it they be free men, and have taken there oath of fealtie, and Inhabiting in this Jurisdiction.

  63. No Governor, Deputie Governor, Assistant, Associate, or grand Jury man at any Court, nor any Deputie for the Generall Court, shall at any time beare his owne chardges at any Court, but their necessary expences shall be defrayed either by the Towne, or Shire on whose service they are, or by the Country in generall.

  64. Everie Action betweene partie and partie, and proceedings against delinquents in Criminall causes shall be briefly and destinctly entered in the Rolles of every Court by the Recorder thereof. That such actions be not afterwards brought againe to the vexation of any man.

  65. No custome or prescription shall ever prevaile amongst us in any morall cause, our meaneing is maintaine anythinge that can be proved to bee morrallie sinfull by the word of god.

  66. The Freemen of everie Towneship shall have power to make such by laws and constitutions as may concerne the wellfare of their Towne, provided they be not of a Criminall, but onely of a prudentiall nature. And that their penalties exceede not 20 sh. for one offence. And that they be not repugnant to the publique laws and orders of the Countrie. And if any Inhabitant shall neglect or refuse to observe them, they shall have power to levy the appointed penalties by distresse.

  67. It is the constant libertie of the freemen of this plantation to choose yearly at the Court of Election out of the freemen all the Generall officers of this Jurisdiction. If they please to dischardge them at the day of Election by way of vote. They may do it without shewing cause. But if at any other generall Court, we hould it due justice, that the reasons thereof be alleadged and proved. By Generall officers we meane, our Governor, Deputie Governor, Assistants, Treasurer, Generall of our warres. And our Admiral at Sea, and such as are or hereafter may be of the like generall nature.

  68. It is the libertie of the freemen to choose such deputies for the Generall Court out of themselves, either in their owne Townes or elsewhere as they judge fittest, And because we cannot foresee what varietie and weight of occasions may fall into future consideration, And what counsells we may stand in neede of, we decree. That the Deputies (to attend the Generall Court in the behalfe of the Countrie) shall not any time be stated or inacted, but from Court to Court, or at the most but for one yeare. that the Countrie may have an Annuall libertie to do in that case what is most behoofefull for the best welfaire thereof.

  69. No Generall Court shall be desolved or adjourned without the consent of the Major parte thereof.

  70. All Freemen called to give any advise, vote, verdict, or sentence in any Court, Counsell, or Civill Assembly, shall have full freedome to doe it according to their true Judgments and Consciences, So it be done orderly and inofensively for the manner.

  71. The Governor shall have a casting voice whensoever an Equi vote shall fall out of the Court of Assistants, or generall assembly, So shall the presendent or moderator have in all Civill Courts or Assemblies.

  72. The Governor and Deputie Governor Joyntly consenting or any three Assistants concurring in consent shall have power out of Court to reprive a condemned malefactour, till the next quarter or generall Court. The generall Court onely shall have power to pardon a condemned malefactor.

  73. The Generall Court hath libertie and Authoritie to send out any member of the Comanwealth of what qualitie, condition or office whatsoever into forreine parts about any publique message or Negotiation. Provided the partie sent be acquainted with the affaire he goeth about, and be willing to undertake the service.

  74. The freemen of every Towne or Towneship, shall have full power to choose yearly or for lesse time out of themselves a convenient number of fitt men to order the planting or prudential occasions of that Towne, according to Instructions given them in writeing, Provided nothing be done by them contrary to the publique laws and orders of the Countrie, provided also the number of such select persons be not above nine.

  75. It is and shall be the libertie of any member or members of any Court, Councell or Civill Assembly in cases of makeing or executing any order or law, that properlie concerne religion, or any cause capitall or warres, or Subscription to any publique Articles or Remonstrance, in case they cannot in Judgement and conscience consent to that way the Major vote or suffrage goes, to make their contra Remonstrance or protestation in speech or writeing, and upon request to have their dissent recorded in the Rolles of that Court. So it be done Christianlie and respectively for the manner. And their dissent onely be entered without the reasons thereof, for the avoiding of tediousness.

  76. When so ever any Jurie of trialls or Jurours are not cleare in their Judgments or consciences conserneing any cause wherein they are to give their verdict, They shall have libertie in open Court to advise with any man they thinke fitt to resolve or direct them, before they give in their verdict.

  77. In all cases wherein any freeman is to give his vote, be it in point of Election, makeing constitutions and orders, or passing sentence in any case of Judicature or the like, if he cannot see reason to give it positively one way or an other, he shall have libertie to be silent, and not pressed to a determined vote.

  78. The Generall or publique Treasure or any parte thereof shall never be exspended but by the appointment of a Generall Court, nor any Shire Treasure, but by the appointment of the freemen thereof, nor any Towne Treasurie but by freemen of that Towneship.

  liberties of woemen

  79. If any man at his death shall not leave his wife a competent portion of his estaite, upon just complaint made to the Generall Court she shall be relieved.

  80. Everie marryed woeman shall be free from bodilie correction or stripes by her husband, unlesse it be in his owne defence upon her assault. If there be any just cause of correction complaint shall be made to Authoritie assembled in some Court, from which onely she shall receive it.

  liberties of children

  81. When Parents dye intestate, the Elder sonne shall have a doble portion of his whole estate reall and personall, unlesse the Generall Court upon just cause alleadged shall Judge otherwise.

  82. When parents dye intestate, haveing noe heires males of their bodies their Daughters shall inherit as Copartners, unles the Generall Court upon just reason shall judge otherwise.

  83. If any parents shall wilfullie and unreasonably deny any childe timely or convenient mariage, or shall exercise any unnaturall severitie towards them, Such children shall have free libertie to complain to Authoritie for redresse.

  84. No Orphan dureing their minoritie which was not committed to tuition or service by the parents in their life time, shall afterwards be absolutely disposed of by any kindred, friend, Executor, Towneship, or Church, nor by themselves without the consent of some Court, wherein two Assistants at least shall be present.

  liberties of servants

  85. If any servants shall flee from the Tiranny and crueltie of their masters to the howse of any freeman of the same Towne, they shall be there protected and susteyned till due order be taken for their relife. Provided due notice thereof be speedily given to their masters from whom they fled. And the next Assistant or Constable where the partie flying is harboured.

  86. No servant shall be put of for above a yeare to any other neither in the life of their master nor after their death by their Executors or Administrators unlesse it be by consent of Authoritie assembled in some Court, or two Assistants.

  87. If any man smite out the eye or tooth of his man servant, or maid servant, or otherwise mayme or much disfigure him, unlesse it be by meere casualtie, he shall let them goe free from his service. And shall have such further recompense as the Court shall allow him.

  88. Servants that have served diligentlie and faithfully to the benefitt of their maisters seaven yeares, shall not be sent away emptie. And if any have bene unfaithfull, negligent or unprofitable in their service, notwithstanding the good usage of their maisters, they shall not be dismissed till they have made satisfaction according to the Judgement of Authoritie.

  liberties of forreiners and strangers

  89. If any people of other Nations professing the true Christian Religion shall flee to us from the Tiranny or oppression of their persecutors, or from famyne, warres, or the like necessary and compulsarie cause, They shall be entertayned and succoured amongst us, according to that power and prudence god shall give us.

  90. If any ships or other vessels, be it freind or enemy, shall suffer shipwrack upon our Coast, there shall be no violence or wrong offered to their persons or goods. But their persons shall be harboured, and relieved, and their goods preserved in safety till Authoritie may be certified thereof, and shall take further order therein.

  91. There shall never be any bond slaverie villinage or Captivitie amongst us, unles it be lawfull Captives taken in just warres, and such strangers as willingly belie themselves or are sold to us. And these shall have all the liberties and Christian usages which the law of god established in Israell concerning such persons doeth morally require. This exempts none from servitude who shall be Judged thereto by Authoritie.

  off the bruite creature

  92. No man shall exercise any Tirranny or Crueltie towards any bruite Creature which are usuallie kept for mans use.

  93. If any man shall have occasion to leade or drive Cattel from place to place that is far of, So that they be weary, or hungry, or fall sick, or lambe, It shall be lawful to rest or refresh them, for a competent time, in any open place that is not Corne, meadow, or inclosed for some peculiar use.

  94.

  1. If any man after legall conviction shall have or worship any other god, but the lord god, he shall be put to death. dut. 13.6.10, dut. 17.2.6, ex. 22.20

  2. If any man or woeman be a witch, (that is hath or consulteth with a familiar spirit,) They shall be put to death. ex. 22.18, lev. 20.27, dut. 18.10

  3. If any person shall Blaspheme the name of God, the father, Sonne, or Holie ghost, with direct expresse, presumptuous or high handed blasphemie, or shall curse god in the like manner, he shall be put to death. lev. 24.15.16

  4. If any person committ any wilfull murther, which is manslaughter, committed upon premeditated mallice, hatred, or Crueltie, not in a mans necessarie and just defence, nor by meere casualtie against his will, he shall be put to death. ex. 21.12, numb. 35.13.14, 30.31

  5. If any person slayeth an other suddainely in his anger or Crueltie of passion, he shall be put to death. numb. 25.20.21, lev. 24.17

  6. If any person shall slay an other through guile, either by poysoning or other such divelish practice, he shall be put to death. ex. 21.14

  7. If any man or woman shall lye with any beast or brute creature by Carnall Copulation, They shall surely be put to death. And the beast shall be slaine and buried and not eaten. lev. 19.23

  8. If any man lyeth with mankinde as he lyeth with a woeman, both of them have committed abhomination, they both shall surely be put to death. lev. 19.22

  9. If any person committeth Adultery with a married or espoused wife, the Adulterer and Adulteresse shall surely be put to death. ex. 20.14

  10. If any man stealeth a man or mankinde, he shall surely be put to death. ex. 21.16

  11. If any man rise up by false witnes, wittingly and of purpose to take away any man’s life, he shall be put to death. dut. 19.16, 18. 19

  12. If any man shall conspire and attempt any invation, insurrection, or publique rebellion against our commonwealth, or shall indeavour to surprize any Towne or Townes, fort or forts therein, or shall treacherously and perfediouslie attempt the alteration and subversion of our frame of politie or Government fundamentallie, he shall be put to death.

  95. A declaration of the Liberties the Lord Jesus hath given to the Churches.

  1. All the people of god within this Jurisdiction who are not in a church way, and be orthodox in Judgement, and not scandalous in life, shall have full libertie to gather themselves into a Church Estaite. Provided they doe it in a Christian way, with due observation of the rules of Christ revealed in his word.

  2. Every Church hath full libertie to exercise all the ordinances of god, according to the rules of Scripture.

  3. Every Church hath free libertie of Election and ordination of all their officers from time to time, provided they be able pious and orthodox.

  4. Every Church hath free libertie of Admission, Recommendation, Dismission, and Expulsion, or deposall of their officers, and members, upon due cause, with free exercise of the Discipline and Censures of Christ according to the rules of his word.

  5. No Injunctions are to be put upon any Church, Church Officers or member in point of Doctrine, worship or Discipline, whether for substance or cercumstance besides the Institutions of the lord.

  6. Every Church of Christ hath freedome to celebrate dayes of fasting and prayer, and of thanksgiveing according to the word of god.

  7. The Elders of Churches have free libertie to meete monthly, Quarterly, or otherwise, in convenient numbers and places, for conferences, and consultations about Christian and Church questions and occasions.

  8. All Churches have libertie to deale with any of their members in a church way that are in the hand of Justice. So it be not to retard or hinder the course thereof.

  9. Every Church hath libertie to deal with any magestrate, Deputie of Court or other officer what soe ever that is a member in a church way in case of apparent and just offence given in their places. so it be done with due observance and respect.

  10. Wee allowe private meetings for edification in religion amongst Christians of all sortes of people. So it be without just offence both for number, time, place, and other cercumstances.

  11. For the preventing and removeing of errour and offence that may grow and spread in any of the Churches in this Jurisdiction. And for the preserveing of trueith and peace in the several churches within them selves, and for the maintenance and exercise of brotherly communion, amongst all the churches in the Countrie, It is allowed and ratified, by the Authoritie of this Generall Court as a lawfull libertie of the Churches of Christ. That once in every month of the yeare (when the season will beare it) It shall be lawfull for the minesters and Elders, of the Churches neere adjoyneing together, with any other of the breetheren with the consent of the churches to assemble by course in each severall Church one after an other. To the intent after the preaching of the word by such a minister as shall be requested thereto by the Elders of the church where the Assembly is held, The rest of the day may be spent in publique Christian Conference about the discussing and resolveing of any such doubts and cases of conscience concerning matter of doctrine or worship or government of the church as shall be propounded by any of the Breetheren of that church, with leave also to any other Brother to propound his objections or answeres for further satisfaction according to the word of god. Provided that the whole action be guided and moderated by the Elders of the Church where the Assemblie is helde, or by such others as they shall appoint. And that no thing be concluded and imposed by way of Authoritie from one or more Churches upon an other, but onely by way of Brotherly conference and consultations. That the trueth may be searched out to the satisfying of every man’s Conscience in the sight of god according to his worde. And because such an Assembly and the worke their of can not be duely attended to if other lectures be held in the same weeke. It is therefore agreed with the consent of the Churches. That in that weeke when such an Assembly is held. All the lectures in all the neighbouring Churches for the weeke shall be forborne. That so the publique service of Christ in this more solemne Assembly may be transacted with greater deligence and attention.

  96. How so ever these above specified rites, freedomes, Immunities, Authorities and priveledges, both Civill and Ecclesiasticall are expressed onely under the name and title of Liberties, and not in the exact forme of Laws, or Statutes, yet we do with one consent fullie Authorise, and earnestly intreate all that are and shall be in Authoritie to consider them as laws, and not to faile to inflict condigne and proportionable punishments upon every man impartiallie, that shall infringe or violate any of them.

  97. Wee likewise give full power and libertie to any person that shall at any time be denyed or deprived of any of them, to commence and prosecute their suite, Complaint, or action against any man that shall so doe, in any Court that hath proper Cognizance or judicature thereof.

  98. Lastly because our dutie and desire is to do nothing suddainlie which fundamentally concerne us, we decree that these rites and liberties, shall be Audably read and deliberately weighed at ever Generall Court that shall be held, within three yeares next insueing, And such of them as shall not be altered or repealed they shall stand so ratified, That no man shall infringe them without due punishment.

  And if any General Court within these next thre yeares shall faile or forget to reade and consider them as abovesaid. The Governor and Deputie Governor for the time being, and every Assistant present at such Courts shall forfeite 20 sh. a man, and everie Deputie 10 sh. a man for each neglect, which shall be paid out of their proper estate, and not by the Country or the Townes which choose them. And when so ever there shall arise any question in any Court amonge the Assistants and Associates thereof about the explanation of these Rites and liberties, The Generall Court onely shall have power to interprett them.

  23

  [The Combination of the Inhabitants upon the Piscataqua River for Government]

  Text taken from Francis N. Thorpe, ed., The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States (Washington, D.C.: Government Printing Office, 1907), 2445. The text is complete, and the spelling is as found in Thorpe.

  October 22, 1641

  It is instructive to compare this document with The Mayflower Compact [3]. The two are surprisingly similar, although it is certain those writing this document did not consult the earlier one. The major difference is that here God is not called upon as a witness, and therefore it is not a covenant but a compact. Note also that the king, although prominently mentioned, does not sanction this agreement either. Instead, the force of this document rests entirely on the people directly, which constitutes de facto popular sovereignty. Popular sovereignty, however, is not yet a legal or formal constitutional principle, which explains why the document is considered only temporary until the king’s approval can be obtained. This is an example, like many other documents during the colonial era, in which political practice preceded political theory, although practice tended to result from the habits of mind engendered by earlier theoretical formulations. In the case of popular sovereignty, that earlier theoretical formulation was to be found in theology.

  Whereas sundry Mischiefs and Inconveniences have befallen us, and more and greater may, in regard of want of Civill Government, his gracious Majesty haveing settled no order for us, to our knowledge, we whose names are underwritten, being Inhabitants upon the River of Pascataqua have voluntarily agreed to combine ourselves into a body Politick, that wee may the more comfortably enjoy the Benefit of his Majesties Laws, and doe hereby actually engage ourselves to submit to his Royall Majesties Laws, together with all such Laws as shall be concluded by a major part of the Freemen of our Society, in Case they be not repugnant to the laws of England, and administered in behalf of his Majestie. And this wee have mutually promised, and engaged to doe, an so to continue till his excellent Majestie shall give other orders concerning us. In witness whereof Wee have hereunto set our hands, October 22. In the 16 year of the Reigne of our Sovereigne Lord, Charles by the grace of God, King of Great Brittaine, France and Ireland, Defender of the Faith, &c.

  Subscribed by Thomas Larkham,

  Richard Waldrene,

  William Waldrene, [with thirty-eight more]

  24

  [Massachusetts Bicameral Ordinance]

  Complete text with original spelling taken from Shurtleff, Massachusetts Colonial Records: Vol. ii, 58–59. Discussion of the historical context, as well as examples of related documents, can be found in Michael Kammen, Deputyes & Libertyes: The Origins of Representative Government in Colonial America (New York: Alfred A. Knopf, 1969).

  March 7, 1644

  It was not unusual for colonial legislatures to have two parts that together constituted the whole. One part elected by the towns (here the deputies) would elect the rest of the legislature (here termed the magistrates). Because the two parts sat together as the legislature, there was only an implicit bicameralism. The magistrates sat continuously to advise the governor, and only periodically would the deputies join them to form a sitting legislature. The Connecticut legislature was structured this way (see the Fundamental Orders of Connecticut, 1639 [43]), as was the Massachusetts legislature until this ordinance was passed in 1644. Here Massachusetts takes the next step and moves to two separate bodies. Note that the move to bicameralism rests on certain unspecified “inconveniences” as well as on the emulation of unspecified models rather than on theoretical principles. Americans would later develop a substantial theoretical justification for bicameralism—enhancing the pursuit of the common good through a more deliberative process as well as the preservation of liberty through separation of powers—but initially bicameralism had a practical, prudential grounding.

  Forasmuch as, after long experience, wee find divers inconveniences in the manner of our proceeding in Courts by magistrates & deputies siting together, & accounting it wisdome to follow the laudable practice of other states who have layd groundworks for government & order in the issuing of business of greatest & highest consequence,—

  It is therefore ordered, first, that the magistrates may sit & act busines by themselves, by drawing up bills & orders which they shall see good in their wisdome, which haveing agreed upon, they may present them to the deputies to bee considered of, how good & wholesome such orders are for the country, & accordingly to give their assent or dissent, the deputies in like manner siting apart by themselves, & consulting about such orders & lawes as they in their discretion & experience shall find meete for common good, which agreed upon by them they may present to the magistrates, who, according to their wisdome, haveing seriously considered of them, may consent unto them or disalow them; & when any orders have passed the approbation of both magistrates & deputies, then such orders to bee ingrossed, & in the last day of the Court to bee read deliberately, & full assent to bee given; provided, also, that all matters of judicature which this Court shall take cognisance of shal bee issued in like manner.

  25

  [Massachusetts Ordinance on the Legislature]

  The complete and original text is taken from Shurtleff, Massachusetts Colonial Records: Vol. ii, 167–68.

  November 13, 1644

  This is a comprehensive ordinance altering the size and mode of electing the legislature (see documents 10, 14, and 24 for the original formation of this legislature and intervening alterations). Note that even though this is an ordinance passed by the legislature, it must be approved by the electorate before it becomes law—“if the freeman shall accept therof [this ordinance] ... assenting or dissenting to this proposition.” Also note that the magistrates are elected by aggregating the votes of all the individual electors in the colony, while the deputies are elected by aggregating the votes for each town. In this way, the deputies represent their respective town while the magistrates represent the entire colony (see the Fundamental Orders of Connecticut, 1639 [43] for a similar distinction). In the U.S. Constitution the House of Representatives will be elected by localities and the Senate by statewide electorates. Although the theoretical grounding for the national practice will be different than for colonial legislatures, the institutional design was developed during the colonial era on practical grounds and justified later.

  It is ordered, that the freemen of this jurisdiction shall meete in their severall townes within two months after the date hereof, to consider of whom they would nominate to be put to vote upon the day of election of newe magistrates, to the number of seaven, at which meeting every freeman shall have liberty to put in his vote for whom hee thinketh fit, all which votes shal be sealed up at that meeting, & sent by some one or two (whom they shall choose) to the sheire townes in each sheire, upon the last 5th day of the last month, at which meeting the said selectmen of every towne (by whom the votes being brought) shall not have power to open them, being sealed up, as before, but shall choose one or two from amongst themselves, by whom they shall send the aforesaid votes, being all sealed up in one paper, unto Boston, on the last third day of the first month, at which meeting there shal be two magistrates, before whom the proxies shal be opened & sorted; & those persons nominated for magistrates that have most votes, to the number of seaven, shal be they that shal be put to vote at the day of election; & that such as have most votes to be first nominated & put to election, that the freemen may know for whom to send in their proxies. The select men of every sheire, being at this meeting, shall take care to send to the aforesaid selectmen of every towne whom they be that are to be put to vote, which select men of every towne shall call a meeting of their townes, & acquaint them whom they are, that so the freemen may have time to consider of them, & send in their proxies accordingly; & no other shal be put to vote but such as are agreed upon, as before.

  Whereas wee haveing found by experience that the charge of this Generall Court groweth very great & burthensome, in regard of the continuall increase of deputies sent unto the same, & further forseeing that as townes increase the number wil be still augmented, to the unsupportable burthen of this common wealth; as also it being thought a matter worthy the triall, dureing the standing of this order, to have the use of the negative vote forborne, both by magistrates & deputies, the premisses considered, it is declared by the Court, (if the freemen shall accept thereof,) that a tryall shal be made for one yeare ensuing the day of election next, by choyce of twenty deputies out of the severall shires to equall the number of magistrates chosen upon the day of election, the choyce of them to be thus divided: Suffolke chall choose sixe, Middlesex sixe, & Essex & Norfolk, being joyned in one, shall chose eight; and further, to the end the ablest gifted men may be made use of in so weighty a worke, it shal be at the liberty of the freemen to choose them, in their own sheires, or elsewhere, as they shall see best, the choyce to be after this manner: the freemen of each shire, meeting in their owne severall townes together within two months next following, shall there give in their severall votes for so many deputies as belong unto their sheire to choose, which votes shal be forthwith sealed up, & one or two chosen to carry them sealed to their sheire town the last 5th day of the last month following, where, in the presence of one magistrate, they shal be opened & conferd togeather, & so many as shall have the major vote of the sheire are chosen, not exceeding the number aforesaid; & such as are so chosen shall assemble themselves at the next Court of Election, presented under the hands of those which were sent from the townes to the sheire meetings aforesaid, the names & severall number of vote they there had, from which assembly those onely that had the greatest number of votes, to equall the number of magistrates then chosen, shal be confirmed, & the rest dismissed from the present service, from every sheire a like number, so neare as may be; the magistrates & deputies thus chosen shall sit togeather as a full & sufficient Generall Court, to act in al things by the major vote of the whole Court; and further, it is declared, that every towne shall fourthwith, namely, by the last of the next month, send in under the hands of their late deputies their vote, assenting or dissenting to this proposition, to the house of Mr. Nowell, who, together with one of the late deputies of Charlestowne, one of Cambridge, & one of Boston, shall have power to peruse the said votes, & if they shall find that the greater number of the townes shall agree that this may be propounded to them shall proceed, they shall thereupon fourthwith certify the Governor thereof, who shall thereupon give speedy notice to every towne that they may proceed according to this declaration; & whereas it may fall out that two or more sheires may make choyce of one & the same men, it is therefore provided, that Suffolk shall begin makeing knowne to Middlesex whom they have chosen, who the next 4th day following shall make their choyce, & send word to Essex & Norfolke whom Suffolk & themselves have chosen; then the next 4th day shall Essex and Norfolke make their choyce.

  26

  The Laws and Liberties of Massachusetts

  Only about 30 percent of the original text is reproduced here. It is based on the copy of the 1648 edition in the Henry E. Huntington Library as reproduced in The Laws and Liberties of Massachusetts (Cambridge: Harvard University Press, 1929). The volume has an introduction by Max Farrand but no listed editor. The spelling of the original has been retained, except for replacing the use of the German s with the standard English form. The sections of the text here omitted contain more mundane provisions concerning such things as the price of cattle, viewers of pipe-staves, the salting of fish, and surveying.

  1647

  Essentially an organized codification of the laws passed in earlier years, with a number of new laws added, this organic act contains everything we might today expect in a constitution and indeed functioned as a constitution for the colony. The document has many notable features. Its preamble efficiently lays out the theoretical basis for government that underlies the document’s contents, and shows the manner and extent to which theological ideas and principles are involved. Note that creating a “city upon a hill” does not involve denigrating the governments of other nations. From the very beginning of the text there is an obvious concern for life, liberty, and property. In addition to laying out the basic institutions of government, The Laws and Liberties is an extended bill of rights that mixes very advanced features with some that are less so; for example, the more than two hundred crimes punishable by death under English common law at that time is reduced to sixteen.

  The Book of the General Lawes and Libertyes Concerning the Inhabitants of the Massachusets Collected Out of the Records of the General Court for the Several Years Wherein They Were Made and Established,

  And now revised by the same Court and desposed into an Alphabetical order and published by the same Authoritie in the General Court held at Boston the fourteenth of the first month Anno 1647.

  to our beloved brethren and neighbours

  The Inhabitants of the Massachusets, the Governour, Assistants and Deputies assembled in the Generall Court of that Jurisdiction with grace and peace in our Lord Jesus Christ. So soon as God had set up Politicall Government among his people Israel hee gave them a body of lawes of judgement both in civil and criminal causes. These were brief and fundamental principles, yet withall so full and comprehensive as out of them clear deductions were to be drawne to all particular cases in future times. For a Common-wealth without lawes is like a Ship without rigging and steeradge. Nor is it sufficient to have principles or fundamentalls, but these are to be drawn out into so many of their deductions as the time and condition of that people may have use of. And it is very unsafe & injurious to the body of the people to put them to learn their duty and libertie from generall rules, nor is it enough to have lawes except they be also just. Therefore among other priviledges which the Lord bestowed upon his peculiar people, these he calls them specially to consider of, that God was neerer to them and their lawes were more righteous then other nations. God was sayd to be amongst them or neer to them because of his Ordnances established by himselfe, and their lawes righteous because himselfe was their Law-giver: yet in the comparison are implyed two things, first that other nations had something of Gods presence amongst them. Secondly that there was also somwhat of equitie in their lawes, for it pleased the Father (upon the Covenant of Redemption with his Son) to restore so much of his Image to lost man as whereby all nations are disposed to worship God, and to advance righteousnes: Which appears in that of the Apostle Rom. 1. 21. They knew God &c: and in the 2. 14. They did by nature the things conteined in the law of God. But the nations corrupting his ordinances (both of Religion, and Justice) God withdrew his presence from them proportionably whereby they were given up to abominable lusts Rom. 2.21. Wheras if they had walked according to that light & law of nature might have been preserved from such moral evils and might have injoyed a common blessing in all their natural and civil Ordinances: now, if it might have been so with the nations who were so much strangers to the Covenant of Grace, what advantage have they who have interest in this Covenant, and may injoye the special presence of God in the puritie and native simplicitie of all his Ordinances by which he is so neer to his owne people. This hath been no small priviledge, and advantage to us in New-England that our Churches, and civil State have been planted, and growne up (like two twinnes) together like that of Israel in the wilderness by which wee were put in minde (and had opportunitie put into our hands) not only to gather our Churches, and set up the Ordinances of Christ Jesus in them according to the Apostolick patterne by such light as the Lord graciously afforded us: but also withall to frame our civil Politie, and lawes according to the rules of his most holy word whereby each do help and strengthen other (the Churches the civil Authoritie, and the civil Authoritie the Churches) and so both prosper the better without such emulation, and contention for priviledges or priority as have proved the misery (if not ruine) of both in some other places.

  For this end about nine years wee used the help of some of the Elders of our Churches to compose a modell of the Judiciall lawes of Moses with such other cases as might be referred to them, with intent to make sure of them in composing our lawes, but not to have them published as the lawes of this Jurisdiction: nor were they voted in Court. For that book intitled The Liberties &c: published about seven years since (which conteines also many lawes and orders both for civil & criminal causes, and is commonly [though without ground] reported to be our Fundamentalls that wee owne as established by Authoritie of this Court, and that after three years experience & generall approbation: and accordingly we have inserted them into this volume under the severall heads to which they belong yet not as fundamentalls, for divers of them have since been repealed, or altered, and more may justly be (at least) amended heerafter as further experience shall discover defects or inconveniences for Nihil simul natum et perfectum. The same must we lay of this present Volume, we have not published it as a perfect body of laws sufficient to carry on the Government established for future times, nor could it be expected that we should promise such a thing. For if it be no disparagement to the wisedome of that High Court of Parliament in England that in four hundred years they could not so compile their lawes, and regulate proceedings in Courts of justice &c: but that they had still new work to do of the same kinde almost every Parliament: there can be no just cause to blame a poor Colonie (being unfurnished of Lawyers and Statemen) that in eighteen years hath produced no more, nor better rules for a good, and setled Government then this Book holds forth: nor have you (our Bretheren and Neighbours) any cause, whether you look back upon our Native Country, or take your observation by other States, & Commonwealths in Europe) to complaine of such as you have imployed in this service; for the time which hath been spent in making laws, and repealing and altering them so often, nor of the charge which the Country hath been put to for those occasions, the Civilian gives you a satisfactorie reason of such continuall alterations additions &c: Crescit in Orbe dolus.

  These Lawes which were made successively in divers former years, we have reduced under severall heads in an alphabetical method, that so they might the more readily ye be found, & that the divers lawes concerning one matter being placed together the scope and intent of the whole and of every of them might the more easily be apprehended: we must confesse we have not been so exact in placing every law under its most proper title as we might, and would have been: the reason was our hasty indeavour to satisfie your longing expectation, and frequent complaints for want of such a volume to be published in print: wherin (upon every occasion) you might readily see the rule which you ought to walke by. And in this (we hope) you will finde satisfastion, by the help of the references under the several heads, and the Table which we have added in the end. For such lawes and orders as are not of generall concernment we have not put them into this booke, but they remain still in force, and are to be seen in the booke of the Records of the Court, but all generall laws not heer inserted nor mentioned to be still of force are to be accounted repealed.

  You have called us from amongst the rest of our Bretheren and given us power to make these lawes: we must now call upon you to see them executed: remembring that old & true proverb, The execution of the law is the life of the law. If one sort of you viz: non-Freemen should object that you had no hand in calling us to this worke, and therefore think yourselvs not bound to obedience &c. Wee answer that a subsequent, or implicit consent is of like force in this case, as an expresse precedent power: for in putting your persons and estates into the protection and way of subsistance held forth and exercised within this jurisdiction, you doe tacitly submit to this Government and to all the wholesome lawes thereof, and so is the common repute in all nations and that upon this Maxim.

  If any of you meet with some law that seemes not to tend to your particular benefit, you must consider that lawes are made with respect to the whole people, and not to each particular person: and obedience to them must be yeilded with respect to the common welfare, not to thy private advantage, and as thou yeildest obedience to the law for comon good, but to thy disadvantage: so another must observe some other law for them good, though to his own damage; thus must we be content to bear one anothers burden and so fullfill the Law of Christ.

  That distinction which is put between the Lawes of God and the laws of men, becomes a snare to many as it is mis-applyed in the ordering of their obedience to civil Authoritie; for when the Authoritie is of God and that in way of an Ordinance Rom. 13. 1. and when the administration of it is according to deductions, and rules gathered from the word of God, and the clear light of nature in civil nations, surely there is no humane law that tendeth to common good (according to those principles) but the same is mediately a law of God, and that in way of an Ordinance which all are to submit unto and that for conscience sake. Rom. 13. 5.

  By order of the General Court.

  increase nowel, secr.

  The Book of the General Lauues and Libertyes Concerning &c:

  forasmuch as the free fruition of such Liberties, Immunities, priviledges as humanitie, civilitie & christianity call for as due to everie man in his place, & proportion, without impeachment & infringement hath ever been, & ever will be the tranquility & stability of Churches & Comon-wealthes; & the deniall or deprivall thereof the disturbance, if not ruine of both:

  It is therefore ordered by this Court, & Authority thereof, That no mans life shall be taken away; no mans honour or good name shall be stayned; no mans person shall be arrested, restrained, bannished, dismembred nor any wayes punished; no man shall be deprived of his wife or children; no mans goods or estate shall be taken away from him; nor any wayes indamaged under colour of law or countenance of Authoritie unles it be by the vertue or equity of some expresse law of the Country warranting the same established by a General Court & sufficiently published; or in case of the defect of a law in any particular case by the word of God. And in capital cases, or in cases concerning dismembring or banishment according to that word to be judged by the General Court [1641]

  abilitie.

  All persons of the age of twenty one years, and of right understanding & memorie whether excommunicate, condemned or other, shall have full power and libertie to make their Wills & Testaments & other lawfull Alientations of their lands and estates. [1641]

  actions.

  All Action of debt, accounts, slaunder, and Actions of the case concerning debts and accounts shall henceforth be tryed where the Plantiffe pleaseth; so it be in the jurisdiction of that Court where the Plantiffe, or Defendant dwelleth: unles by consent under both their hands it appeare they would have the case tryed in any other Court. All other Actions shal be tryed within that jurisdiction where the cause of Action doth arise. [1642]

  2. It is ordered by this Court & Authoritie thereof, That every person impleading another in any court of Assistants, or County court shal pay the sum of ten shillings before his case be entred, unless the court fee cause to admit any to sue in [1642]

  3. It is ordered by the Authority aforesayd, That where the debt or damage recovered shall amount to ten pounds in every such case to pay five shillings more, and where it shall amount to twenty pounds or upward there to pay ten shillings more then the first ten shillings, which sayd additions shall be put to the Judgement and Execution to be levied by the Marshall and accounted for to the Treasurer. [1647]

  4. In all actions brought to any court the Plantiffe shall have liberty to withdraw his action or to be non-suted before the Jurie have given in their verdict; in which case he shall alwayes pay full cost and charges to the Defendant, and may afterward renew his sute at another Court. [1641]

  age.

  It is ordered by this Court & the Authoritie thereof, that the age for passing away of lands, or such kinde of hereditaments, or for giving of votes, verdicts or sentences in any civil courts or causes, shall be twenty and one years: but in case of chusing of Guardions, fourteen years [1641 1647]

  ana-baptists.

  Forasmuch as experience hath plentifully & often proved that since the first arising of the Ana-baptists about a hundred years past they have been the Incendiaries of Common-Wealths & the Infectors of persons in main matters of Religion, & the Troublers of Churches in most places where they have been, & that they who have held the baptizing of Infants unlawful, have usually held other errors or heresies together therwith (though as hereticks used to doe they have concealed the same untill they espied a fit advantage and opportunity to vent them by way of question or scruple) and wheras divers of this kinde have since our coming into New-England appeared amongst our selvs, some whereof as others before them have denied the Ordinance of Magistracy, and the lawfulnes of making warre, others the lawfulnes of Magistrates, and their Inspection into any breach of the first Table: which opinions is conived at by us are like to be increased among us & so necessarily bring guilt up us, infection, & trouble to the Churches & hazzard to the whole Common-wealth:

  It is therfore ordered by this Court & Authoritie therof, that if any person or persons within this Jurisdiction shall either openly condemn or oppose the baptizing of Infants, or goe about secretly to reduce others from the approbation or use thereof, or shall purposely depart the Congregation at the administration of that Ordinance; or shall deny the Ordinance of Magistracy, or their lawfull right or authoritie to make war, or to punish the outward breaches of the first Table, and shall appear to the Court wilfully and obstinately to continue therin, after due means of conviction, everie such person or persons shall be sentenced to Banishment. [1644] ...

  arrests.

  It is ordered and decreed by this Court & Authoritie thereof, That no mans person shall be arrested or imprisoned for any debt or fine if the law can finde any competent meanes of satisfaction otherwise from his estate. And if not this person may be arrested and imprisoned, where he shall be kept at his own charge, not the Plaintiffs, till satisfaction be made; unles the Court that had cognisance of the cause or some superiour Court shall otherwise determine: provided neverthelesse that no mans person shall be kept in prison for debt but when there appears some estate which he will not produce, to which end any Court or Commissioners authorized by the General Court may administer an oath to the partie or any others suspected to be privie in concealing his estate, but shall satisfie by service if the Creditor require it but shall not be solde to any but of the English nation. [1641: 1647] ...

  bond-slavery.

  It is ordered by this Court and authoritie thereof, that there shall never be any bond-slavery, villenage or captivitie amongst us; unless it be lawfull captives, taken in just warrs, and such strangers as willingly sell themselves, or are solde to us: and such shall have the libertyes and christian usages which the law of God established in Israell concerning such persons doth morally require, provided, this exempts none from servitude who shall be judged thereto by Authoritie. [1641] ...

  capital lawes.

  If any man after legal conviction shall have or worship any other God, but the lord god: he shall be put to death. Exod. 22. 20. Deut. 13.6. & 10. Deut. 17. 2. 6.

  2. If any man or woman be a witch, that is, hath or consulteth with a familiar spirit, they shall be put to death. Exod. 22. 18. Levit. 20. 27. Deut. 18. 10. 11.

  3. If any person within this Jurisdiction whether Christian or Pagan shall wittingly and willingly presume to blaspheme the holy Name of God, Father, Son or Holy-Ghost, with direct, expresse, presumptuous, or highhanded blasphemy, either by wilfull or obstinate denying the true God, or his Creation, or Government of the world: or shall curse God in like manner, or reproach the holy religion of God as if it were but a politick device to keep ignorant men in awe; or shal utter any other kinde of Blasphemy of the like nature & degree they shall be put to death. Levit. 24. 15. 16.

  4. If any person shall commit any wilfull murther, which is Man slaughter, committed upon premeditate malice, hatred, or crueltie not in a mans necessary and just defence, nor by meer casualty against his will, he shall be put to death. Exod. 21. 12. 13. Numb. 35. 31.

  5. If any person slayeth another suddenly in his anger, or cruelty of passion, he shall be put to death. Levit. 24. 17. Numb. 35. 20. 21.

  6. If any person shall slay another through guile, either by poysoning, or other such devilish practice, he shall be put to death. Exod. 21. 14.

  7. If any man or woman shall lye with any beast, or bruit creature, by carnall copulation; they shall surely be put to death: and the beast shall be slain, & buried, and not eaten. Lev. 20. 15. 16.

  8. If any man lyeth with man-kinde as he lieth with a woman, both of them have committed abomination, they both shal surely be put to death: unles the one partie were forced (or be under fourteen years of age in which case he shall be seveerly punished) Levit. 20. 13.

  9. If any person commit adulterie with a married or espoused wife; the Adulterer & Adulteresse shall surely be put to death. Lev. 20. 19. & 18. 20 Deu. 22. 23. 27.

  10. If any man stealeth a man, or Man-kinde, he shall surely be put to death Exodus 21. 16.

  11. If any man rise up by false-witnes wittingly and of purpose to take away any mans life: he shal be put to death. Deut. 19. 16. 18. 16.

  12. If any man shall conspire, and attempt any Invasion, Insurrection, or publick Rebellion against our Common-Wealth: or shall indeavour to surprize any Town, or Townes, Fort, or Forts therin; or shall treacherously, & perfidiously attempt the Alteration and Subversion of our frame of Politie, or Government fundamentally he shall be put to death. Numb. 16. 2 Sam. 3. 2 Sam. 18. 2 Sam. 20.

  13. If any child, or children, above sixteen years old, and of sufficient understanding, shall curse, or smite their natural father, or mother; he or they shall be put to death: unles it can be sufficiently testified that the Parents have been very unchristianly negligent in the education of such children; or so provoked them by extream, and cruel correction: that they have been forced therunto to preserve themselves from death or maiming. Exod. 21. 17. Lev. 20. 9. Exod 21. 15.

  14. If a man have a stubborn or rebellious son, of sufficient years & uderstanding (viz) sixteen years of age, which will not obey the voice of his Father, or the voice of his Mother, and that when they have chastened him will not harken unto them: then shal his Father & Mother being his natural parents, lay hold on him, & bring him to the Magistrates assembled in Court & testifie unto them, that their Son is stubborn & rebellious & will not obey their voice and chastisement, but lives in sundry notorious crimes, such a son shal be put to death. Deut. 21. 20. 21.

  15. If any man shal ravish any maid or single woman, comitting carnal copulation with her by force, against her own will; that is above the age of ten years he shal be punished either with death, or with some other greivous punishment according to circumstances as the Judges, or General court shal determin. [1641] ...

  charges publick.

  And it is further ordered that the Comissioners for the severall towns in everie Shire shall yearly upon the first fourth day of the week in the seventh month, assemble at their shire Town: & bring with them fairly written the just number of males listed as aforesaid, and the assessments of estates made in their several towns according to the rules & directions in this present order expressed, and the said Comissioners being so assembled shall duly and carefully examin all the said lists and assessments of the severall towns in that Shire, and shall correct & perfect the same according to the true intent of this order, as they or the major part of them shall determine, & the same so perfected they shal speedily transmit to the Treasurer under their hands or the hands of the major part of them and therupon the Treasurer shal give warrants to the Constables to collect & levie the same; so as the whole assessment both for persons & estates may be payd in unto the Treasurer before the twentith day of the ninth month, yearly, & everie one shal pay their rate to the Constable in the same town where it shal be assessed. Nor shall any land or estate be rated in any other town but where the same shal lye, is, or was improved to the owners, reputed owners or other propietors use or behoof if it be within this Jurisdiction. And if the Treasurer canot dispose of it there, the Constable shall send it to such place in Boston, or elswhere as the Treasurer shall appoint at the charge of the Countrie to be allowed the Constable upon his accout with the Treasurer. And for all peculiars viz: such places as are not yet layd within the bounds of any town the same lands with the persons and estates therupon shall be assessed by the rates of the town next unto it, the measure or estimation shall be by the distance of the Meeting houses ...

  children.

  For as much as the good education of children is of singular behoof and benefit to any Common-wealth; and wher as many parents & masters are too indulgent and negligent of their duty in that kinde. It is therefore ordered that the Selectmen of every town, in the severall precincts and quarters where they dwell, shall have a vigilant eye over their brethren & neighbours, to see, first that none of them shall suffer so much barbarism in any of their families as not to indeavour to teach by themselves or others, their children & apprentices so much learning as may inable them perfectly to read the english tongue, & knowledge of the Capital laws: upon penaltie of twentie shillings for each neglect therin. Also that all masters of families doe once a week (at the least) catechize their children and servants in the grounds & principles of Religion, & if any be unable to doe so much: that then at the least they procure such children or apprentices to learn some short orthodox catechism without book, that they may be able to answer unto the questions that shall be propounded to them out of such catechism by their parents or masters or any of the Selectmen when they shall call them to a tryall of what they have learned in this kinde. And further that all parents and masters do breed & bring up their children & apprentices in some honest lawful calling, labour or imploymet, either in husbandry, or some other trade profitable for themselves, and the Common-wealth if they will not or cannot train them up in learning to fit them for higher imployments. And if any of the Selectmen after admonition by them given such masters of families shal finde them still negligent of their dutie in the particulars aforementioned, wherby children and servants become rude, stubborn & unruly; the said Selectmen with the help of two Magistrates, or the next County court for that Shire, shall take such children or apprentices from them & place them with some masters for years (boyes till they come to twenty-one, and girls eighteen years of age compleat) which will more strictly look unto, and force them to submit unto government according to the rules of this order, if by fair means and former instructions they will not be drawn unto it. [1642]

  2. Wheras sundry gentlemen of qualitie, and others oft times send over their children into this country unto some freinds heer, hoping at the least therby to prevent their extravagant and riotous courses, who not with standing by means of some unadvised and ill-affected persons, which give them credit, in expectation their freinds, either in favour to them or prevention of blemish to themselves, will discharge what ever is done that way, they are no lesse lavish & profuse heer to the great greif of their freinds, dishonour of God & reproach of the Countrie.

  It is therefore ordered by this Court & authoritie thereof; That if any person after publication heerof shall any way give credit to any such youth, or other person under twentie one years of age, without order from such their freinds, heer, or elswhere, under their hands in writing they shall lose their debt whatever it be. And further if such youth or other person incur any penalty by such means and have not wherwith to pay, such person, or persons, as are occasions therof shall pay it as delinquents in the like case should doe. [1647]

  3. If any parents shall wilfully, and unreasonably deny any childe timely or convenient marriage, or shall exercise any unnaturall severeitie towards them such children shal have libertie to complain to Authoritie for redresse in such cases. [1641]

  4. No Orphan during their minority which was not committed to tuition, or service by their parents in their life time, shall afterward be absolutely disposed of by any without the consent of some Court wherin two Assistants (at least) shall be present, except in case of marriage, in which the approbation of the major part of the Selectmen, in that town or any one of the next Assistants shall be sufficient. And the minoritie of women in case of marriage shall be till sixteen years. [1646] ...

  councill.

  This Court considering how the weighty affairs of this Jurisdiction whether they concern this peculiarly or have reference to the rest of our confederated Colonies may be duly and speedily transacted in the vacancy of the Generall Court for the satisfaction of the Comissioners, in respect of the weighty and sodain occasions which may be then in hand, doth heerby expresse and declare, That the General Court ought to be called by the Governour, when the importancy of the busines doth require it, and that time and opportunitie will safely admit the same, and that all other necessary matters are to be ordered and dispatched by the major part of the Council of the Common-wealth, & therfore to that end letters signifying, breifly, the busines and the time and place of meeting for consultation ought to be sent unto the Assistants. Also it is heerby declared, that seven of the said Assistants meeting, the Governour or Deputy Governour being one is a sufficient Assembly to act, by impressing of soldiers or otherwise as need shall be. And in case of extream and urgent necessitie, when indeavours are reasonably used to call together the Assistants and the busines will not admit delay, then the acts of so many as do assemble are to be accounted, and are accounted valid, & sufficient. Also it is intended that the generall words aforementioned contein in them power to impresse & send forth soldiers, and all manner of victuails, vessels at sea, carriages and all other necessaries, and to send warrants to the Treasurer to pay for them. [1645]

  courts.

  For the better administration of justice and easing the Countrie of unnecessary charge and travells: it is ordered by this Court and Authoritie thereof;

  That there shal be four Quarter Courts of Assistants yearly kept by the Governour, or Deputy Gover: and the rest of the Magistrates, the first of them on the first third day (viz: tuisday) in the fourth month called June: the second on the first third day of the seventh month: the third on the first third day of the tenth month: the fourth on the first third day of the first month called March. Also there be four County Courts held at Boston, by such of the Magistrates as shall reside in, or neer the same, viz: by any five, four or three of them, who shall have power to assemble together upo the last fift day of the eight, eleventh, second & fift months everie year, and there to hear & determin all civil causes & criminal, not extending to life, member or banishment according to the course of the court of Assistnts, & to summon Juries out of the neighbour towns, & the Marshall & other Officers shall give attendance there as at other Courts. And it is further ordered that there shall be four Quarter Courts kept yearly by the Magistrates of Essex, with such other persons of worth as shall fro time to time be apointed by the General Court; at the nomination of the towns in that Shire by orderly agreement among themselves, to be joyned in Commission with them so that with the Magistrates they be five in all and so that no Court be kept without one Magistrate at the least: and so any three of the Commissioners aforesaid may keep Court in the absence of the rest: yet none of all the Magistrates are excluded from any of these Courts who can, and please to attend the same. And the General Court to appoint from time to time, which of the said Magistrates shall specially belong to everie of the said Courts. Two of these Quarter Courts shall be kept at Salem, the other at Ipswitch. The first, the last third day of the week in the seventh month at Ipswitch. The second at Salem the last third day of the tenth month. The third at Ipswitch the last third day of the first month. The fourth the last third day of the fourth month at Salem. All and every which Courts shall be holden by the Magistrates of Salem and Ipswitch with the rest of that County or so many of them shall attend the same; but no Jurie men shal be warned from Ipswitch to Salem nor from Salem to Ipswitch. Also there shall be a Grand Jurie at either place, once a year. Which Courts shall have the same power in civil and criminal causes as the courts of Assistants have (at Boston) except tryalls for life, limb or banishment, which are wholy reserved unto the courts of Assistants. The like libertie for County courts and tryall of causes is graunted to the Shire town of Cambridge for the County of Midlesex, as Essex hath, to be holden by the Magistrates of Midlesex & Suffolk & such other men of worth as shall be nominated and chosen as aforesaid, one of which Courts shall be holden on the last third day of the eight month, and another on the last third day of the second month from year to year. And the like libertie for County Courts and tryall of causes is graunted to the County of Norfolk to be holden at Salisburie on the last third day of the second month; and another at Hampton on such day as the General Court shall appoint to be kept in each place from time to time. And if any shal finde himselfe greived with the sentence of any the said County courts he may appeal to the next court of Assistants. Provided he put in sufficient caution according to law. Lastly, it is ordered by the Authoritie aforesaid that all causes brought to the courts of Assistants by way of appeal, and other causes specially belonging to the said courts, shall be first determined from time to time: & that causes of divorce shall be tryed only in the said court of Assistants. [1635 1636 1639 1641 1642]

  2. For the more speedy dispatch of all causes which shall concern Strangers, who cannot stay to attend the ordinary Courts of justice, It is ordered by this Court and Authoritie therof;

  That the Governour or Deputy Governour with any two other Magistrates, or when the Governour or Deputy Governour cannot attend it, that any three Magistrates shall have power to hear and determin by a Jurie of twelve men, or otherwise as is used in other Courts, all causes civil and criminal triable in County Courts, which shall arise between such Strangers, or wherin any such Stranger shall be a partie. And all records of such proceedings shall be transmitted to the Records of the Court of Assistants, to be entered as tryalls in other Courts, all which shall be at the charge of the parties, as the Court shall determin, so as the Country be no wayes charged by such courts. [1639]

  3. For the electing of our Governour, Deputy Governor, Assistants and other general Officers upon the day or dayes appointed by our Pattent to hold our yearly Court being the last fourth day of the week (viz: Wednesday) of every Easter Term; it is solemnly and unanimously decreed and established,

  That henceforth the Freemen of this Jurisdiction shal either in person or by proxie without any Summons attend & consummate the Elections, at which time also they shal send their Deputies with full power to consult of and determin such matters as concern the welfare of this Common-wealth; from which General Court no Magistrates or Deputy shall depart or be discharged without the consent of the major part both of Magistrates and Deputies, during the first four dayes of the first Session therof, under the penaltie of one hundred pounds for everie such default on either part. And for the after Sessions, if any be, the Deputies for Dover are at libertie whether to atted or not. [1643]

  4. Forasmuch as after long experience wee finde divers inconveniences in the manner of our proceeding in Courts by Magistrates and Deputies sitting together, and account it wisedome to follow the laudable practice of other States, who have layd ground works for government and order for issuing busines of greatest and highest consequence: it is therfore ordered by this Court and Authoritie therof,

  That henceforth the Magistrates may sit and act busines by themselves, by drawing up Bills and Orders which they shall see good in their wisdom, which having agreed upon, they may present them to the Deputies to be considered of, how good and wholesom such orders are for the Countrie & accordingly to give their assent or dissent. The Deputies in like manner sitting apart by themselves and consulting about such orders and laws as they in their discretion and experience shall finde meet for the common good: which agreed upon by them they may present to the Magistrates who having seriously considered of them may manifest their consent or dissent thereto. And when any Orders have passed the approbation of both Magistrates and Deputies, then to be ingrossed: which in the last day of this Court or Sessions shal be deliberately read over. Provided also that all matters of Judicature which this Court shall take cognisance of, shall be issued in like manner (unles the Court upon some particular occasion or busines agree otherwise). [1644] ...

  deputies for the generall court.

  For easing the body of Freemen now increasing, and better dispatching the busines of General Courts, It is ordered and by this Court declared;

  That henceforth it shall be lawfull for the Freemen of everie Plantation to choose their Deputies before every Generall Court, to confer of, and prepare such publick busines as by them shall be thought fit to consider of at the next General court. And that such persons as shall be heerafter so deputed by the Freemen of the several Plantations to deal on their behalfe in the publick affairs of the Common-wealth, shall have the full power and voices of all the said Freemen derived to them for the making and establishing of Laws, graunting of lands, and to deal in all other affairs of the Comon-wealth wherin the Freemen have to doe: the matter of election of Magistrates and other officers only excepted wherin every Freeman is to give his own voice. [1634]

  2. Forasmuch as through the blessing of God the number of towns are much increased, It is therfore ordered and by this Court enacted;

  That henceforth no town shall send more then two Deputies to the General Court; though the number of Freemen in any town be more then twenty. And that all towns which have not to the number of twenty Freemen shall send but one Deputy, & such towns as have not ten Freemen shall send none, but such Freemen shall vote with the next town in the choice of their Deputie or Deputies til this Court take further order. [1636 1638]

  3. It is ordered by this Court and Authoritie therof, That when the Deputyes for severall towns are met together before, or at any General court, it shall be lawfull for them or the major part of them to hear and determin any difference that may arise about the election of any of their members, and to order things amongst themselves that may concern the well ordering of their body. And that heerafter the Deputies for the General court shall be elected by papers as the Governour is chosen. [1634 1635]

  4. It is ordered by this Court and Authoritie therof; That the Freemen of any Shire or town have liberty to choose such Deputies for the General court either in their own Shire, Town, or elsewhere, as they judge fittest, so be it they be Freemen and inhabiting within this Jurisdiction. And because wee cannot foresee what variety and weight of occasions may fall into future consideration, & what counsells we may stand in need of: wee decree that the Deputies to attend the General court in behalfe of the Coutry shall not at any time be stated and enacted but from court to court, or at the most but for one year, that the Countrie may have an annual liberty to doe in what case what is most behoofefull for the best welfare therof. [1641] ...

  ecclesiasticall:

  1. All the people of God within this Jurisdiction who are not in a Church way and be orthodox in judgement and not scandalous in life shall have full libertie to gather themselves into a Church estate, provided they doe it in a christian way with due observation of the rules of Christ revealed in his word. Provided also that the General Court doth not, nor will heerafter approve of any such companyes of men as shall joyne in any pretended way of Church fellowship unles they shall acquaint the Magistrates and the Elders of the neighbour Churches where they intend to joyn, & have their approbation therin.

  2. And it is farther ordered, that no person being a member of any Church which shal be gathered without the approbation of the Magistrates and the said Churches shal be admitted to the Freedom of this Common-wealth.

  3. Everie Church hath free liberty to exercise all the Ordinances of God according to the rules of the Scripture.

  4. Everie Church hath free libertie of election and ordination of all her Officers from time to time. Provided they be able, pious and orthodox.

  5. Everie Church hath also free libertie of admission, recommendation, dismission & expulsion or deposall of their Officers and members upon due cause, with free exercise of the disciplin and censures of Christ according to the rules of his word.

  6. No injuction shall be put upon any Church, church Officer or member in point of doctrine, worship or disciplin, whether for substance or circumstance besides the institutions of the Lord.

  7. Everie Church of Christ hath freedom to celebrate dayes of Fasting and prayer and of Thanksgiving according to the word of God.

  8. The Elders of churches also have libertie to meet monthly, quarterly or otherwise in convenient numbers and places, for conference and consultations about christian and church questions and occasions.

  9. All Churches also have libertie to deal with any their members in a church way that are in the hands of justice, so it be not to retard and hinder the course therof.

  10. Everie Church hath libertie to deal with any Magistrate, Deputy of court, or other Officer whatsoever that is a member of theirs, in a church way in case of apparent and just offence, given in their places, so it be done with due observance and respect.

  11. Wee also allow private meetings for edification in Religion amongst christians of all sorts of people so it be without just offence, both for number, time, place and other circumstances.

  12. For the preventing and removing of errour and offence that may grow and spread in any of the Churches in this jurisdiction, and for the preserving of truth & peace in the severall Churches within themselves, and for the maintainance and exercise of brotherly comunion amongst all the Churches in the country.

  It is allowed and ratified by the authoritie of this Court, as a lawfull libertie of the Churches of Christ, that once in every month of the year (when the season will bear it) it shall be lawfull for the Ministers and Elders of the Churches neer adjoyning, together with any other of the Brethren, with the consent of the Churches, to assemble by course in everie several church one after another, to the intent, that after the preaching of the word, by such a Minister as shal be requested therto, by the Elders of the Church where the Assemby is held, the rest of the day may be spent in public christian conference, about the discussing and resolving of any such doubts & cases of consciences concerning matter of doctrine, or worship, or government of the Church as shall be propounded by any of the Brethren of that Church; with leave also to any other Brother to propound his objections, or answers, for further satisfaction according to the word of God. Provided that the whole action be guided and moderated by the Elders of the Church where the Assembly is held, or by such others as they shall appoint. And that nothing be concluded and imposed by way of Authoritie from one, or more Churches, upon another, but only by way of brotherly conference & consultations, that the truth may be searched out to the satisfying of every mans conscience in the sight of God according to his word. And because such an Assemblie and the work therof cannot be duly attended if other lectures be held the same week, it is therfore agreed with the consent of the Churches, that in what week such an Assembly is held all the Lectures in all the neighbouring Churches for the week dayes shall be forborne, that so the publick service of Christ in this Assembly may be transacted with greater diligence & attention. [1641]

  13. Forasmuch as the open contempt of Gods word and Messengers therof is the desolating sinne of civil States and Churches and that the preaching of the word by those whom God doth send, is the chief ordinary means ordained of God for the converting, edifying and saving the souls of the Elect through the presence and power of the Holy-Ghost, therunto promised: and that the ministry of the word, is set up by God in his Churches, for those holy ends: and according to the respect or contempt of the same and of those whom God hath set apart for his own work & imployment, the weal or woe of all Christian States is much furthered and promoted; it is therefore ordered and decreed,

  That if any christian (so called) within this Jurisdiction shall contemptuously behave himselfe toward the Word preached or the Messengers therof called to dispense the same in any Congregation; when he doth faithfully execute his Service and Office therin, according to the will and word of God, either by interrupting him in his preaching, or by charging him falsely with any errour which he hath not taught in the open face of the Church: or like a son of Korah cast upon his true doctrine or himselfe any reproach, to the dishonour of the Lord Jesus who hath sent him and to the disparagement of that his holy Ordinance, and making Gods wayes contemptible and ridiculous: that everie such person or persons (whatsoever censure the Church may passe) shall for the first scandall be convented and reproved openly by the Magistrate at some lecture, and bound to their good behaviour. And if a second time they break forth into the like contemptuous carriages, they shall either pay five pounds to the publick Treasurie; or stand two hours openly upon a block or stool, four foot high on a lecture day with a paper fixed on his breast, written in Capital letters [an open and obstinate contemner of gods holy ordinances] that others may fear and be ashamed of breaking out into the like wickednes. [1646]

  14. It is ordered and decreed by this Court and Authoritie thereof; That wheresoever the ministry of the word is established according to the order of the Gospell throughout this Jurisdiction every person shall duly resort and attend therunto respectively upon the Lords days & upon such publick Fast dayes & dayes of Thanksgiving as are to be generally kept by the appointmet of Authoritie: & if any person within this Jurisdiction shal without just and necessarie cause withdraw himselfe from hearing the publick ministry of the word after due meanes of conviction used, he shall forfeit for his absence from everie such publick meeting five shillings. All such offences to be heard and determined by any one Magistrate or more from time to time. [1646]

  15. Forasmuch as the peace and prosperity of Churches and members therof as well as civil Rights & Liberties are carefully to be maintained, it is ordered by this Court & decreed, That the civil Authoritie heer established hath power and liberty to see the peace, ordinances and rules of Christ be observed in everie Church according to his word. As also to deal with any church-member in a way of civil justice notwithstanding any church relation, office, or interest; so it be done in a civil and not in an ecclesiastical way. Nor shall any church censure degrade or depose any man from any civil dignity, office or authoritie he shall have in the Commonwealth. [1641]

  16. Forasmuch as there are many Inhabitants in divers towns, who leave their several habitations and therby draw much of the in-come of their estates into other towns wherby the ministry is much neglected, it is therfore ordered by this Court and the authoritie therof; That from henceforth all lands, cattle and other estates of any kinde whatsoever, shall be lyable to be rated to all common charges whatsoever, either for the Church, Town or Comon-wealth in the same place where the estate is from time to time. And to the end there may be a convenient habitation for the use of the ministry in everie town in this Jurisdiction to remain to posterity. It is decreed by the authoritie of this Court that where the major part of the Inhabitants (according to the order of regulating valid town acts) shall graunt, build, or purchase such habitation it shall be good in law, and the particular sum upon each person assessed by just rate, shal be duly paid according as in other cases of town rates. Provided alwayes that such graunt, deed of purchase and the deed of gift therupon to the use of a present preaching Elder and his next successour and so from time to time to his successors: be entred in the town book and acknowledged before a Magistrate, and recorded in the Shire court. [1647]

  elections.

  It is ordered by this Court and Authoritie therof: That for the yearly choosing of Assistants for the time to come instead of papers the Freemen shall use indian corn and beans. The indian corn to manifest election, the beans for blanks. And that if any Freeman shall put in more then one indian corn or bean for the choise or refusal of any publick Officer, he shall forfeit for everie such offence ten pounds. And that any man that is not free or otherwise hath not libertie of voting, putting in any vote shal forfeit the like sum of ten pounds. [1643]

  2. For the preventing of many inconveniences that otherwise may arise upon the yearly day of Election, and that the work of that day may be the more orderly, easily and speedily issued, it is ordered by this Court and the authoritie thereof.

  That the Freemen in the several towns and villages within this Jurisdiction, shall this next year from time to time either in person or by proxie sealed up, make all their elections, by papers, indian corn and beans as heerafter is expressed, to be taken, sealed up & sent to the court of Election as this order appoints, the Governour, Deputie Governour, Major Generall, Treasurer, Secretary and Comissioners for the united Colonies to be chosen by writing, open or once folded, not twisted or rolled up, that so they may be the sooner and surer perused: and all the Assistants to be chosen by indian corn and beans, the indian corn to manifest election as in Sect: I; and for such small villages as come not in person and that send no Deputies to the Court, the Constable of the said village, together with two or three of the chiefe Freemen shall receive the votes of the rest of their Freemen, and deliver them together with their own sealed up to the Deputie or Deputies for the next town, who shall carefully convey the same unto the said Court of Election. [1647]

  3. For asmuch as the choice of Assistants in case of supply is of great concernment, and with all care and circumspection to be attended; It is therfore ordered by this Court and Authoritie therof,

  That when any Assistants are to be supplyed, the Deputies for the General Court shall give notice to their Constables or Selectmen to call together their freemen in their severall towns: to give in their votes unto the number of seven persons, or as the General Court shall direct, who shall then and there appoint one to carrie them sealed up unto their Shire towns upon the last fourth day of the week in the first month from time to time; which persons for each town so assembled shall appoint one for each Shire to carrie them unto Boston the second third day of the second month there to be opened before two Magistrates. And those seven or other number agreed upon as aforesaid, that have most votes shall be the men which shall be nominated at the court of Election for Assistants as aforesaid. Which persons the Agents for each Shire shall forthwith signifie to the Constables of all their several towns in writing under their hands with the number of votes for each person: all which the said Constables shall forthwith signifie to their Freemen. And as any hath more votes then other so shall they be put to vote. [1647]

  4. It is decreed and by this Court declared That it is the constant libertie of the Freemen of this Jurisdiction to choose yearly at the court of Election out of the Freemen, all the general Officers of this Jurisdiction, and if they please to discharge them at the court of Election by way of vote they may doe it without shewing cause. But if at any other General Court, we hold it due justice that the reason therof be alledged and proved. By general Officers we mean our Governour, Deputy Governour, Assistants, Treasurer, General of our wars, our Admirall at sea, Commissioners for the united-Colonies and such others as are, or heerafter may be of the like general nature. [1641]

  fornication

  It is ordered by this Court and Authoritie therof, That if any man shall commit Fornication with any single woman, they shall be punished either by enjoyning to Marriage, or Fine, or corporall punishment, or all or any of these as the Judges in the courts of Assistants shall appoint most agreeble to the word of God. And this Order to continue till the Court take further order. [1642]

  freemen, non-freemen.

  wheras there are within this jurisdiction many members of churches who to exempt themselves from all publick service in the Common-wealth will not come in, to be made Freemen, it is therfore ordered by this Court and the Authoritie therof,

  That all such members of Churches in the severall towns within this Jurisdiction shall not be exempted from such publick service as they are from time to time chosen to by the Freemen of the severall towns: as Constables, Jurors, Select-men and Surveyors of highwayes. And if any such person shall refuse to serve in, or take upon him any such Office being legally chosen therunto, he shall pay for every such refusall such Fine as the town shall impose, not exceeding twenty shilings as Freemen are lyable to in such cases. [1647]

  fugitives, strangers.

  It is ordered by this Court and Authoritie therof, That if any people of other nations prosessing the true Christian Religion shall flee to us from the tyranie or oppression of their persecutors, or from Famine, Wars, or the like necessarie and compulsarie cause, they shall be entertained and succoured amongst us according to that power and prudence God shall give us. [1641]

  gaming.

  upon Complaint of great disorder by the use of the game called Shuffle-board, in houses of common entertainment, wherby much pretious time is spent unfruitfully and much wast of wine and beer occasioned; it is therfore ordered and enacted by the Authoritie of this Court;

  That no person shall henceforth use the said game of Shuffle-board in any such house, nor in any other house used as common for such purpose, upon payn for every Keeper of such house to forfeit for everie such offence five shillings: Nor shall any person at any time play or game for any monie, or mony-worth upon penalty of forefeiting treble the value therof: one half to the partie informing, the other half to the Treasurie. And any Magistrate may hear and determin any offence against this Law. [1646 1647]

  general court.

  It is ordered, and by this Court declared that the Governour and Deputie Governour joyntly consenting, or any three Assistants concurring in consent shall have power out of Court to reprieve a condemned malefactor till the next Court of Assistants: or General Court. And that the General Court only shall have power to pardon a condemned malefactor.

  Also it is declared that the General Court hath libertie and Authoritie to send forth any member of this Common-wealth, of what qualitie and condition or office whatsoever into forrein parts, about any publick Message or negociation: notwithstanding any office or relation whatsoever. Provided the partie so sent be acquainted with the affairs he goeth about, and be willing to undertake the service.

  Nor shall any General Court be dissolved or adjourned without the consent of the major part therof. [1641]

  governour.

  It is ordered, and by this Court declared that the Governour shall have a casting vote whensoever an equivote shall fall out in the Court of Assistants, or general Assemblie: so shall the President or Moderatour have in all civil Courts or Assemblies [1641]

  heresie.

  although no humane power be Lord over the Faith & Consciences of men, and therfore may not constrein them to beleive or professe against their Consciences: yet because such as bring in damnable heresies, tending to the subversion of the Christian Faith, and destruction of the soules of men, ought duly to be restreined from such notorious impiety, it is therfore ordered and decreed by this Court;

  That if any Christian within this Jurisdiction shall go about to subvert and destroy the christian Faith and Religion, by broaching or mainteining any damnable heresie; as denying the immortalitie of the Soul, or the resurrection of the body, or any sin to be repented of in the Regenerate, or any evil done by the outward man to be accounted sin: or denying that Christ gave himself a Ransom for our sins, or shal affirm that wee are not justified by his Death and Righteousnes, but by the perfection of our own works; or shall deny the moralitie of the fourth commandement, or shall indeavour to seduce others to any the herisies aforementioned, everie such person continuing obstinate therin after due means of conviction shall be sentenced to Banishment. [1646] ...

  idlenes.

  It is ordered by this Court and Authoritie therof, that no person, Housholder or other shall spend his time idlely or unproffitably under pain of such punishment as the Court of Assistants or County Court shall think meet to inflict. And for this end it is ordered that the Constable of everie place shall use speciall care and diligence to take knowledge of offenders in this kinde, especially of common coasters, unproffitable fowlers and tobacco takers, and present the same unto the two next Assistants, who shall have power to hear and determin the cause, or transfer it to the next Court. [1633]

  jesuits.

  this court taking into consideration the great wars, combustions and divisions which are this day in Europe: and that the same are observed to be raysed and fomented chiefly by the secret underminings, and solicitations of those of the Jesuiticall Order, men brought up and devoted to the religion and court of Rome; which hath occasioned divers States to expell them their territories; for prevention wherof among our selves, It is ordered and enacted by Authoritie of this Court,

  That no Jesuit, or spiritual or ecclesiastical person [as they are termed] ordained by the authoritie of the Pope, or Sea of Rome shall henceforth at any time repair to, or come within this Jurisdiction: And if any person shal give just cause of suspicion that he is one of such Societie or Order he shall be brought before some of the Magistrates, and if he cannot free himselfe of such suspicion he shall be committed to prison, or bound over to the next Court of Assistants, to be tryed and proceeded with by Banishment or otherwise as the Court shall see cause: and if any person so banished shall be taken the second time within this Jurisdiction upon lawfull tryall and conviction he shall be put to death. Provided this Law shall not extend to any such Jesuit, spiritual or ecclesiasticall person as shall be cast upon our shoars, by ship-wrack or other accident, so as he continue no longer then till he may have opportunitie of passage for his departure; nor to any such as shall come in company with any Messenger hither upon publick occasions, or any Merchant or Master of any ship, belonging to any place not in emnitie with the State of England, or our selves, so as they depart again with the same Messenger, Master or Merchant, and behave themselves inoffensively during their abode heer. [1647] ...

  impresses.

  It is ordered, and by this Court declared, that no man shall be compelled to any publick work, or service, unlesse the Presse be grounded upon some act of the General Court; and have reasonable allowance therfore: nor shall any man be compelled in person to any office, work, wars, or other publick service that is necessarily and sufficiently exempted, by any natural or personal impediment; as by want of years, greatnes of age, defect of minde, failing of senses, or impotencye of lims. Nor shall any man be compelled to go out of this Jurisdiction upon any offensive wars, which this Common-wealth, or any of our freinds or confoederates shall voluntarily undertake; but only upon such vindictive and defensive wars, in our own behalf, or the behalf of our freinds and confoederates; as shall be enterprized by the counsell, and consent of a General Court, or by Authoritie derived from the same. Nor shall any mans cattle or goods of what kinde soever be pressed, or taken for any publick use or service; unles it be by Warrant grounded upon some act of the General Court: nor without such reasonable prizes and hire as the ordinarie rates of the Countrie doe afford. And if his cattle or goods shall perish, or suffer damage in such service, the Owner shall be sufficiently recompenced. [1641]

  imprisonment.

  It is ordered, and by this Court declared; that no mans person shall be restreined or imprisoned by any authoritie whatsoever before the Law hath sentenced him therto: if he can put in sufficient securitie, Bayle or Mainprize for his appearance, and good behaviour in the mean time: unles it be in crimes Capital, and contempt in open Court, and in such cases where some expresse Act of Court doth allow it. [1641]

  indians

  It is ordered by Authoritie of this Court; that no person whatsoever shall henceforth buy land of any Indian, without license first had & obtained of the General Court: and if any shall offend heerin, such land so bought shall be forfeited to the Countrie.

  Nor shall any man within this Jurisidiction directly or indirectly amend, repair, or cause to be amended or repaired any gun, small or great, belonging to any Indian, nor shall indeavour the same. Nor shall sell or give to any Indian, directly or indirectly any such gun, or any gun-powder, shot or lead, or shotmould, or any militarie weapons or armour: upon payn of ten pounds fine, at the least for everie such offence: and that the court of Assistants shall have power to increase the Fine; or to impose corporall punishment (where a Fine cannot be had) at their discretion.

  It is ordered by the Authoritie aforesaid that everie town shall have power to restrein all Indians from profaning the Lords day. [1633 1637 1641]

  2. Wheras it appeareth to this Court that notwithstanding the former Laws, made against selling of guns, powder and Ammunition to the Indians, they are yet supplyed by indirect means, it is thefore ordered by this Court and Authoritie therof;

  That if any person after publication heerof, shall sell, give or barter any gun or guns, powder, bullets, shot or lead to any Indian whatsoever, or unto any person inhabiting out of this Jurisdiction without license of this Court, or the court of Assistants, or some two Magistrates, he shall forfeith for everie gun so sold, given or bartered ten pounds: and for everie pound of powder five pounds: and for everie pound of bullets, shot or lead fourty shillings: and so proportionably for any greater or lesser quantitie. [1642]

  3. It is ordered by this Court and Authoritie therof, that in all places, the English and such others as co-inhabit within our Jurisidiction shall keep their cattle from destroying the Indians corn, in any ground where they have right to plant; and if any of their corn be destroyed for want of fencing, or herding; the town shall make satisfaction, and shall have power among themselves to lay the charge where the occasion of the damage did arise. Provided that the Indians shall make proof that the cattle of such a town, farm, or person did the damage. And for encouragement of the Indians toward the fencing in their corn fields, such towns, farms or persons, whose cattle may annoy them that way, shall direct, assist and help them in felling of trees, ryving, and sharpening of rayls, & holing of posts: allowing one English-man to three or more Indians. And shall also draw the fencing into place for them, and allow one man a day or two toward the setting up the same, and either lend or sell them tools to finish it. Provided that such Indians, to whom the Countrie, or any town hath given, or shall give ground to plant upon, or that shall purchase ground of the English shall fence such their corn fields or ground at their own charge as the English doe or should doe; and if any Indians refuse to fence their corn ground (being tendred help as aforesaid) in the presence and hearing of any Magistrate or selected Townsmen being met together they shall keep off all cattle or lose one half of their damages.

  And it is also ordered that if any harm be done at any time by the Indians unto the English in their cattle; the Governour or Deputie Governour with two of the Assistants or any three Magistrates or any County Court may order satisfaction according to law and justice. [1640 1648]

  4. Considering that one end in planting these parts was to propagate the true Religion unto the Indians: and that divers of them are become subjects to the English and have ingaged themselves to be willing and ready to understand the Law of God, it is therfore ordered and decreed,

  That such necessary and wholsom Laws, which are in force, and may be made from time to time, to reduce them to civilitie of life shall be once in the year (if the times be safe) made known to them, by such fit persons as the General Court shall nominate, having the help of some able Interpreter with them.

  Considering also that interpretation of tongues is appointed of God for propagating the Truth: and may therfore have a blessed successe in the hearts of others in due season, it is therfore farther ordered and decreed,

  That two Ministers shall be chosen by the Elders of the Churches everie year at the Court of Election, and so be sent with the consent of their Churches (with whomsoever will freely offer themselves to accompany them in that service) to make known the heavenly counsell of God among the Indians in most familiar manner, by the help of some able Interpreter; as may be most available to bring them unto the knowledge of the truth, and their conversation to the Rules of Jesus Christ. And for that end that something be allowed them by the General Court, to give away freely unto those Indians whom they shall perceive most willing & ready to be instructed by them.

  And it is farther ordered and decreed by this Court; that no Indian shall at any time powaw, or performe outward worship to their false gods: or to the devil in any part of our Jurisdiction; whether they be such as shall dwell heer, or shall come hither: and if any shall transgresse this Law, the Powawer shall pay five pounds; the Procurer five pounds; and every other countenancing by his presence or otherwise being of age of discretion twenty shillings. [1646]

  inditements.

  If any person shall be indicted of any capital crime (who is not then in durance) & shall refuse to render his person to some Magistrates within one month after three Proclaimations publickly made in the town where he usually abides, there being a month betwixt Proclaimation and Proclaimation, his lands and goods shall be seized to the use of the common Treasurie, till he make his lawfull appearance. And such withdrawing of himselfe shall stand in stead of one wittnes to prove his crime, unles he can make it appear to the Court that he was necessarily hindred. [1646]

  in-keepers, tippling, drunkenes.

  forasmuch as there is a necessary use of houses of common entertainment in every Common-wealth, and of such as retail wine, beer and victuals; yet because there are so many abuses of that lawfull libertie, both by persons entertaining and persons entertained, there is also need of strict Laws and rules to regulate such an employment: It is therfore ordered by this Court and Authoritie therof;

  That no person or persons shall at any time under any pretence or colour whasoever undertake to be a common Victuailer, Keeper of a Cooks shop, or house for common entertainment, Taverner, or publick seller of wine, ale, beer or strong-water (by re-tale), nor shall any sell wine privately in his house or out of doors by a lesse quantitie, or under a quarter cask: without approbation of the selected Townsmen and Licence of the Shire Court where they dwell: upon pain of forfeiture of five pounds for everie such offence, or imprisonment at pleasure of the Court, where satisfaction cannot be had.

  And every person so licenced for common entertainment shall have some inoffensive Signe obvious for strangers direction, and such as have no such Signe after three months so licensed from time to time shall lose their license: and others allowed in their stead. Any licensed person that selleth beer shall not sell any above two-pence the ale-quart: upon penaltie of three shillings four pence for everie such offence. And it is permiteed to any that will to sell beer out of doors at a pennie the ale-quart and under.

  Neither shall any such licenced person aforesaid suffer any to be drunken, or drink excessively viz: above half a pinte of wine for one person at one time; or to continue tippling above the space of half an hour, or at unreasonable times, or after nine of the clock at night in, or about any of their houses on penaltie of five shillings for everie such offence.

  And everie person found drunken viz: so that he be therby bereaved or disabled in the use of his understanding, appearing in his speech or gesture in any the said houses or elsewhere shall forfeith ten shillings. And for excessive drinking three shillings four pence. And for continuing above half an hour tippling two shillings six pence. And for tippling at unreasonable times, or after nine a clock at night five shillings: for everie offence in these particulars being lawfully convict therof. And for want of payment such shall be imprisoned untill they pay: or be set in the Stocks one hour or more [in some open place] as the weather will permit not exceeding three hours at one time ...

  juries, jurors.

  It is ordered by this Court and Authoritie therof, that the Constable of everie town upon Proces from the Recorder of each Court, shall give timely notice to the Freemen of their town, to choos so many able discreet men as the Proces shal direct which men so chosen he shall warn to attend the Court wherto they are appointed, and shall make return of the Proces unto the Recorder aforesaid: which men so chosen shall be impannelled and sworn truly to try betwixt partie and partie, who shall finde the matter of fact with the damages and costs according to their evidence, and the Judges shall declare the Sentence (or direct the Jurie to finde) according to the law. And if there be any matter of apparent equitie as upon the forfeiture of an Obligation, breach of covenant without damage, or the like, the Bench shall determin such matter of equitie.

  2. Nor shall any tryall passe upon any for life or bannishment but by a special Jurie so summoned for that purpose, or by the General Court.

  3. It is also ordered by the Authoritie aforesaid that there shall be Grand-Juries summoned everie year unto the several Courts, in each Jurisdiction; to inform the Court of any misdemeanours that they shall know or hear to be committed by any person or persons whatsoever within this Jurisdiction. And to doe any other service of the Common-wealth, that according to law they shall be injoyned to by the said Court; and in all cases wherin evidence is so obscure or defective that the Jurie cannot clearly and safely give a positive verdict, whether it be Grand, or Petty Jurie, it shall have libertie to give a [verdict] or a special verdict, in which last, that is, a special verdict the judgement of the Cause shall be left unto the Bench. And all jurors shall have libertie in matters of fact if they cannot finde the main issue yet to finde and present in their verdict so much as they can.

  4. And if the Bench and Jurors shall so differ at any time about their verdict that either of them cannot proceed with peace of conscience, the Case shall be referred to the General Court who shall take the question from both and determin it.

  5. And it is farther ordered that whensoever any Jurie of tryalls, or Jurors are not clear in their judgements or consciences, concerning any Case wherin they are to give their verdict, they shall have libertie, in open court to advise with any man they shall think fit to resolve or direct them, before they give in their verdict. And no Freeman shall be compelled to serve upon Juries above one ordinary Court in a year: except Grand-jurie men, who shall hold two Courts together at the least, and such others as shall be summoned to serve in case of life and death or bannishment. [1634 1641 1642]

  justice.

  It is ordered, and by this Court declared; that every person within this Jurisdiction, whether Inhabitant or other shall enjoy the same justice and law that is general for this Jurisdiction which wee constitute and execute one towards another, in all cases proper to our cognisance without partialitie or delay. [1641] ...

  liberties common

  It is ordered by this Court, decreed and declared; that everie man whether Inhabitant or Forreiner, Free or not Free shall have libertie to come to any publick Court, Counsell, or Town-meeting; and either by speech or writing, to move any lawfull, reasonable, or material question; or to present any necessarie motion, complaint, petition, bill or information wherof that Meeting hath proper cognisance, so it be done in convenient time, due order and respective manner. [1641]

  2. Everie Inhabitant who is an hous-holder shall have free fishing and fowling, in any great Ponds, Bayes, Coves and Rivers so far as the Sea ebs and flows, within the precincts of the town where they dwell, unles the Freemen of the same town, or the General Court have otherwise appropriated them. Provided that no town shall appropriate to any particular person or persons, any great Pond conteining more then ten acres of land: and that no man shall come upon anothers proprietie without their leave otherwise then as heerafter expressed; the which clearly to determin, it is declared that in all creeks, coves and other places, about and upon salt water where the Sea ebs and flows, the Proprietor of the land adjoyning shall have proprietie to the low water mark where the Sea doth not ebb above a hundred rods, and not more wheresoever it ebs farther. Provided that such Proprietor shall not by this libertie have power to stop or hinder the passage of boats or other vessels in, or through any sea creeks, or coves to other mens houses or lands. And for great Ponds lying in common though within the bounds of some town, it shall be free for any man to fish and fowl there, and may passe and repasse on foot through any mans proprietie for that end, so they trespasse not upon any mans corn or meadow. [1641 1647]

  3. Every man of, or within this Jurisdiction shall have free libertie, (notwithstanding any civil power) to remove both himself and his familie at their pleasure out of the same. Provided there be no legal impediment to the contrary. [1641]

  lying.

  wheras truth in words as well as in actions is required of all men, especially of Christians who are the professed Servants of the God of Truth; and wheras all lying is contrary to truth, and some sorts of lyes are not only sinfull (as all lyes are) but also pernicious to the Publick-weal, and injurious to particular persons; it is therfore ordered by this Court and Authoritie therof,

  That everie person of the age of discretion [which is accounted fourteen years] who shall wittingly and willingly make, or publish any Lye which may be pernicious to the publick weal, or tending to the damage or injurie of any particular person, or with intent to deceive and abouse the people with false news or reports: and the same duly proved in any Court or before any one Magistrate (who hath heerby power graunted to hear, and determin all offences against this Law) such person shall be fined for the first offence ten shillings, or if the partie be unable to pay the same then to be set in the stocks so long as the said Court of Magistrate shall appoint, in some open place, not exceeding two hours. For the second offence in that kinde wherof any shall be legally convicted the sum of twenty shillings, or be whipped upon the naked body not exceeding ten stripes. And for the third offence that way fourty shillings, or if the partie be unable to pay, then to be whipped with more stripes, not exceeding fifteen. And if yet any shall offend in the like kinde, and be legally convicted therof, such person, male or female, shall be fined ten shillings a time more then formerly: or if the partie so offending be unable to pay, then to be whipped with five, or six more stripes then formerly not exceeding fourty at any time.

  The aforesaid fines shall be levied, or stripes inflicted either by the Marshal of that Jurisdiction, or Constable of the Town where the offence is committed according as the Court or Magistrate shall direct. And such fines so levied shall be paid to the Treasurie of that Shire where the Cause is tried.

  And if any person shall finde himselfe greived with the sentence of any such Magistrate out of Court, he may appeal to the next Court of the same Shire, giving sufficient securitie to prosecute his appeal and abide the Order of the Court. And if the said Court shall judge his appeal causlesse, he shall be double fined and pay the charges of the Court during his Action, or corrected by whipping as aforesaid not exceeding fourtie stripes; and pay the costs of Court and partie complaining or informing, and of Wittnesses in Case.

  And for all such as being under age of discretion that shall offend in lying contrary to this Order their Parents or Masters shall give them due correction, and that in the presence of some Officer if any Magistrate shall so appoint. Provided also that no person shall be barred of his just Action of Slaunder, or otherwise by an proceeding upon this Order. [1645]

  magistrates.

  this court being sensible of the great disorder growing in this Commonwealth through the contempts cast upon the civil Authoritie, which willing to prevent, doe order and decree;

  That whosoever shall henceforth openly or willingly defame any Court of justice, or the Sentences or proceedings of the same, or any of the Magistrates or other Judges of any such Court in respect of any Act or Sentence therin passed, and being therof lawfully convict in any General Court or Court of Assistants shall be punished for the same by Fine, Imprisonment, Disfranchisement or Bannishment as the qualitie and measure of the offence shall deserve.

  And if any Magistrate or other member of any court shall use any reproachfull, or un-beseeming speeches, or behaviour towards any Magistrate, Judge, or member of the Court in the face of the said Court he shall be sharply reproved, by the Governour, or other principal Judge of the same Court for the time being. And if the qualitie of the offence be such as shall deserve a farther censure, or if the person so reproved shall reply again without leave, the same Court may proceed to punish any such offender by Fine, or Imprisonment, or it shall be presented to, and censured at the next superiour Court.

  2. If in a General Court any miscarriage shall be amongst the Magistrates when they are by themselves, it shall be examined, and sentenced amongst themselves. If amongst the Deputies when they are by themselves, it shall be examined, and sentenced amongst themselves. If it be when the whole Court is together, it shall be judged by the whole Court, and not severall as before. [1637 1641]

  3. And it is ordered by the Authoritie of this Court that the Governour, Deputie Governour, or greater part of the Assistants may upon urgent occasion call a General Court at any time. [1647]

  4. And wheras there may arise some difference of judgement in doubtfull cases, it is therfore farther ordered;

  That no Law, Order, or Sentence shall passe as an Act of the Court without the consent of the greater part of the Magistrates on the one partie, and the greater number of the Deputies on the other part.

  5. And for preventing all occasions of partial and undue proceeding in Courts of justice, and avoyding of jealousies which may be taken up against Judges in that kinde, it is farther ordered,

  That in everie Case of civil nature between partie and partie where there shall fall out so neer relation between any Judge and any of the parties as between Father and Son, either by nature or marriage, Brother and Brother; in like kinde Uncle and Nephew, Land-lord and Tenent in matter of considerable value, such Judge though he may have libertie to be present in the Court at the time of the tryall, and give reasonable advice in the Case, yet shall have no power to vote or give sentence therin, neither shall Sit as Judge, but beneath the Bench when he shall so plead or give advice in the Case. [1635]

  monopolies.

  It is ordered, decreed and by this Court declared; that there shall be no Monopolies graunted or allowed amongst us, but of such new inventions that are profitable for the Countrie, and that for a short time. [1641]

  oaths, subscription

  It is ordered and decreed, and by this Court declared; that no man shall be urged to take any oath, or subscribe any Articles, Covenants, or remonstrance of publick and civil nature but such as the General Court hath considered, allowed and required. And that no oath of Magistrate, counceller or any other Officer shall binde him any farther, or longer then he is resident, or reputed an Inhabitant of this Jurisdiction [1641]

  oppression

  For avoyding such mischeifs as may follow by such illdisposed persons as may take libertie to oppresse and wrong their neighbours, by taking excessive wages for work, or unreasonable prizes for such necessarie merchandizes or other commodities as shall passe from man to man, it is ordered, That if any man shall offend in any of the said cases he shall be punished by Fine, or Imprisonment according to the qualitie of the offence, as the Court to which he is presented upon lawfull tryall & conviction shall adjudge. [1635] ...

  profane swearing.

  It is ordered, and by this Court decreed, that if any person within this Jurisdiction shall swear rashly and vainly either by the holy Name of God, or any other oath, he shall forfeit to the common Treasurie for everie such severall offence ten shillings. And it shall be in the power of any Magistrate by Warrant to the Constable to call such person before him, and upon sufficient proof to passe sentence, and levie the said penaltie according to the usuall order of Justice. And if such person be not able, or shall utterly refuse to pay the aforesaid Fine, he shall be committed to the Stocks there to continue, not exceeding three hours, and not lesse then one hour. [1646] ...

  punishment

  It is ordered, decreed, and by this Court declared; that no man shall be twice sentenced by civil Justice for one and the same Crime, offence or Trespasse. And for bodily punishments, wee allow amongst us none that are in-humane, barbarous or cruel. [1641]

  schools.

  It being one chief project of that old deluder, Satan, to keep men from the knowledge of the Scriptures, as in former times keeping them in an unknown tongue, so in these later times by perswading from the use of Tongues, that so at least the true sense and meaning of the Original might be clowded with false glosses of Saint-seeming-deceivers; and that Learning may not be buried in the graves of our fore-fathers in Church and Commonwealth, the Lord assisting our indeavours: it is therfore ordered by this Court and Authoritie therof;

  That everie Township in this Jurisdiction, after the Lord hath increased them to the number of fifty Householders shall then forthwith appoint one within their Town to teach all such children as shall resort to him to write and read, whose wages shall be paid either by the Parents or Masters of such children, or by the Inhabitants in general by way of supply, as the major part of those that order the prudentials of the Town shall appoint. Provided that those which send their children be not oppressed by paying much more then they can have them taught for in other Towns.

  2. And it is farther ordered, that where any Town shall increase to the number of one hundred Families or Householders they shall set upon a Grammar-School, the Masters therof being able to instruct youth so far as they may be fitted for the Universitie. And if any Town neglect the performance heerof above one year then everie such town shall pay five pounds per annum to the next such School, till they shall perform this Order. [1647] ...

  strangers.

  It is ordered by this Court and the Authoritie therof; that no Town or person shal receive any stranger resorting hither with intent to reside in this Jurisdiction, nor shall allow any Lot or Habitation to any, or entertain any such above three weeks, except such person shall have allowance under the hand of some one Magistrate, upon pain of everie Town that shall give, or sell any Lot or Habitation to any not so licenced such Fine to the Countrie as the County Court shall impose, not exceeding fifty pounds, nor lesse then ten pounds. And of everie person receiving any such for longer time then is heer expressed or allowed, in some special cases as before, or in case of entertainment of friends resorting from other parts of this Country in amitie with us, shall forfeit as aforesaid, not exceeding twenty pounds, nor lesse then four pounds: and for everie month after so offending, shal forfeit, as aforesaid not exceeding ten pounds, nor lesse then fourty shillings. Also, that all Constables shall inform the Courts of new commers which they know to be admitted without licence, from time to time. [1637 1638 1647]

  summons.

  It is ordered, and by this Court declared; that no Summons, Pleading, Judgement or any kinde of proceeding in Court or course of justice shall be abated, arested or reversed upon any kinde of circumstantial errors or mistakes, if the person and the Cause be rightly understood and intended by the Court.

  2. And that in all cases where the first Summons are not served six dayes before the Court, and the Case briefly specified in the Warrant where appearance is to be made by the partie summoned; it shall be at his libertie whether he will appear, or not, except all Cases that are to be handled in Courts suddenly called upon extraordinarie occasions. And that in all cases where there appears present and urgent cause any Assistant or Officer appointed shall have power to make out Attachments for the first Summons. Also, it is declared that the day of Summons or Attachment served, and the day of appearance shall be taken inclusively as part of the six dayes. [1641 1647]

  suits, vexatious suits.

  It is ordered and decreed, and by this Court declared; that in all Cases where it appears to the Court that the Plaintiffe hath willingly & wittingly done wrong to the Defendant in commencing and prosecuting any Action, Suit, Complaint or Indictment in his own name or in the name of others, he shall pay treble damages to the partie greived, and be fined fourty shillings to the Common Treasurie. [1641 1646] ...

  tobacco.

  This Court finding that since the repealing of the former Laws against Tobacco, the same is more abused then before doth therfore order,

  That no man shall take any tobacco within twenty poles of any house, or so neer as may indanger the same, or neer any Barn, corn, or hay-cock as may occasion the fyring therof, upon pain of ten shillings for everie such offence, besides full recompence of all damages done by means therof. Nor shall any take tobacco in any Inne or common Victualing-house, except in a private room there, so as neither the Master of the said house nor any other Guests there shall take offence therat, which if any doe, then such person shall forthwith forbear, upon pain of two shillings sixpence for everie such offence. And for all Fines incurred by this Law, one half part shall be to the Informer the other to the poor of the town where the offence is done. [1638 1647]

  torture.

  It is ordered, decreed, and by this Court declared; that no man shall be forced by torture to confesse any crime against himselfe or any other, unles it be in some Capital where he is first fully convicted by clear and sufficient evidence to be guilty. After which, if the Case be of that nature that it is very apparent there be other Conspirators or Confoederates with him; then he may be tortured, yet not with such tortures as be barbarous and inhumane.

  2. And that no man shal be beaten with above fourty stripes for one Fact at one time. Nor shall any man be punished with whipping, except he have not otherwise to answer the Law, unles his crime be very shamefull, and his course of life vitious and profligate. [1641]

  townships.

  It is ordered, decreed, and by this Court declared, that if any man shall behave himselfe offensively at any Town-meeting, the rest then present shall have power to sentence him for such offence, so be it the mulct or penalty exceed not twenty shillings.

  2. and that the Freemen of everie Township, and others authorized by law, shall have power to make such Laws and Constitutions as may concern the welfare of their Town. Provided they be not repugnant to the publick Laws and Orders of the Countrie. And if any Inhabitant shall neglect or refuse to observe them, they shall have power to levie the appointed penalties by distresse.

  3. Also that the Freemen of everie town or Township, with such other the Inhabitats as have taken the Oath of fidelitie shall have full power to choos yearly, or for lesse time, within each Township a convenient number of fit men to order the planting and prudential occasions of that Town, according to instructions given them in writing.

  Provided, nothing be done by them contrary to the publick Laws and Orders of the Countrie. Provided also that the number of such Select persons be not aboue nine.

  4. Farther, it is ordered by the Authoritie aforesayd, that all Towns shall take care from time to time to order and dispose of all single persons, and In-mates within their Towns to service, or otherwise. And if any be greived at such order or dispose, they have libertie to appeal to the next County Court.

  5. This Court taking into considerattion the usefull Parts and abilities of divers Inhabitants amongst us, which are not Freemen, which if improved to publick use, the affairs of this Common-wealth may be the easier caried an end in the severall Towns of this Jurisdiction doth order, and heerby declare;

  That henceforth it shall may be lawfull for the Freemen within any of the said Towns, to make choice of such Inhabitants (though non-Freemen) who have taken, or shall take the Oath of fidelitie to this Government to be Jurie-men, and to have their Vote in the choice of the Select-men for the town Affairs, Assessements of Rates, and other Prudentials proper to the Select-men of the several Towns. Provided still that the major part of all companyes of Select-men be Free-men from time to time that shall make any valid Act. As also, where no Select-men are, to have their Vote in ordering of Schools, hearing of cattle, laying out of High-wayes and distributing of Lands; any Law, Use or Custom to the contrary notwithstanding. Provided also that no non-Freeman shall have his Vote, untill he have attained the age of twenty one years. [1636 1641 1647]

  tryalls.

  Wheras this Court is often taken up in hearing and deciding particular Cases, between partie and partie, which more properly belong to other inferiour Court. And that if the partie against whom the Judgment shall have any new evidence, or other new matter to plead, he may desire a new Tryall in the same Court upon a Bill or review. And if justice shall not be done him upon that Tryall he may then come to this Court for releif. [1642]

  2. it is ordered, and by this Court declared, that in all Actions of Law it shall be the libertie of the Plaintiffe and Defendant by mutuall consent to choos whether they will be tryed by the Bench or a Jurie, unles it be where the Law upon just reason hath otherwise determined. The like libertie shall be graunted to all persons in any criminal Cases.

  3. Also it shall be in the libertie both of Plaintiffe and Defendant, & likewise everie delinquent to be judged by a Jurie, to challenge any of the Jurors, & if the challenge be found just and reasonable, by the Bench or the rest of the Jurie as the Challenger shall choos, it shall be allowed him, & impannelled in their room.

  4. Also, children, Ideots, distracted persons and all that are strangers or new comers to our Plantation shall have such allowances, and dispensations in any Case, whether criminal or others, as Religion and reason require. [1641]

  votes.

  It is ordered, decreed and by this Court declared; that all, and everie Freeman, and others authorized by Law, called to give any Advice, Vote, Verdict or Sentence in any Court, Council or civil Assemblie, shall have full freedom to doe it according to their true judgements and consciences, so it be done orderly and inoffensively, for the manner. And that in all cases wherin any Freeman or other is to give his Vote be it in point of Election, making Constitutions and Orders or passing Sentence in any case of Judicature or the like, if he cannot see light or reason to give it positively, one way or other, he shall have libertie to be silent, and not pressed to a determinate vote. And farther that whensoever any thing is to be put to vote, and Sentence to be pronounced or any other matter to be proposed, or read in any Court or Assemblie, if the President or Moderator shall refuse to perform it, the major part of the members of that Court or Assemblie shall have power to appoint any other meet man of them to doe it. And if there be just cause, to punish him that should, and would not. [1641]

  userie.

  It is ordered, decreed & by this Court declared, that no man shall be adjudged for the meer forbearance of any debt, above eight pounds in the hundred for one year, and not above that rate proportionably for all sums whatsoever, Bills of Exchange excepted, neither shall this be a colour or countenance to allow any usurie amongst us contrary to the Law of God. [1641 1643] ...

  witnesses.

  It is ordered, decreed, and by this Court declared, that no man shall be put to death without the testimonie of two or three witnesses, or that which is equivalent therunto. [1641]

  2. And it is ordered by this Court and the Authoritie therof, that any one Magistrate, or Commissioner authorized therunto by the General Court may take the Testimonie of any person of fourteen years of age, or above, of sound understanding and reputation, in any Case civil or criminal; and shall keep the same in his own hands till the Court, or deliver it to the Recorder, publick Notarie or Clerk of the writs to be recorded, that so nothing may be altered in it. Provided, that where any such witnesse shall have his abode within ten miles of the Court, and there living and not disabled by sicknes, or other infirmitie, the said Testimonie so taken out of court shall not be received, or made use of in the Court, except the witnes be also present to be farther examined about it. Provided also, that in all capital cases all witnesses shall be present wheresoever they dwell.

  3. And it is farther ordered by the Authoritie aforesaid, that any person summoned to appear as a witnes in any civil Court between partie and partie, shall not be compellable to travell to any Court or place where he is to give his Testimonie, except he who shall so summon him shall lay down or give him satisfaction for his travell and expences, out-ward and home-ward; and for such time as he shall spend in attendance in such case when he is at such Court or place, the Court shall award due recompence. And it is ordered that two shillings a day shall be accounted due satisfaction to any Witnes for travell and expences: and that when the Witnes dwelleth within three miles, and is not at charge to passe over any other Ferrie than betwixt Charlstown and Boston then one shilling six pence per diem shall be accounted sufficient. And if any Witnes after such payment or satisfaction shall fail to appear to give his Testimonie he shall be lyable to pay the parties damages upon an action of the Case. And all Witnesses in criminal cases shall have suitable satisfaction, payd by the Treasurer upon Warrant from the Court or Judge before whom the case is tryed. And for a general rule to be observed in all criminal causes, both where the Fines are put in certain, and also where they are otherwise, it is farther ordered by the Authoritie aforesayd, that the charges of Witnesses in all such cases shall be borne by the parties delinquent, and shall be added to the Fines imposed; that so the Treasurer having upon Warrant from the Court or other Judge satisfied such Witnesses, it may be repayd him with the Fine: that so the Witness may be timely satisfied, and the countrie not damnified. [1647] ...

  27

  [Massachusetts Ordinance on Legislative Procedure]

  Text taken from Shurtleff, Massachusetts Colonial Records: Vol. ii, 194–98. Text is complete, with the original spelling.

  October 18, 1648

  The following ordinance qualifies as a founding document because it creates and describes the duties of elected officers of the legislature. Very little survives concerning colonial legislative processes, so this document is doubly interesting because it is the oldest surviving description of how a colonial legislature went about its business. It is clear that the purpose of the ordinance is not only to maintain orderly processes and systematic record keeping but also to ensure that legislative proceedings and decisions are available to the public in a form that allows them to remain informed. Earlier documents in this collection have clearly implied a de facto popular sovereignty, and thus, the systematic keeping of public legislative records is in keeping with that implication. Because colonial legislatures passed relatively few laws by today’s standards and were quite small, they could easily conduct their business without dividing into committees. Therefore it is noteworthy that the Massachusetts legislature (General Court) was apparently already using a committee system, especially since the British Parliament, with much larger concerns and a much heavier legislative load, had moved to an intermittent committee system only a few years earlier. The use of a committee system, however, also made the process much more deliberative, and a deliberative decision making process was highly valued in colonial America as a means of pursuing the consensual common good as opposed to mere majority rule. The commitment to deliberative processes is reflected in a variety of documents, but see documents 46 and 62 for more obvious examples.

  For the better carrying on the occassions of the Generall Court, & to the end that the records of the same, together with what shall be presented by way of petition, etc., or passes by way of vote, either amongst the magistrates or deputies, may hereafter be more exactly recorded, & kept for public use,—

  It is hereby ordered, that as there is a secretary amongst the magistrates, (who is the generall officer of the common wealth, for the keeping the publike records of the same,) so there shall be a clarke amongst the deputies, to be chosen by them, from time to time; that (by the Court of Elections, and then the officers to begin their entryes, their recompence accordingly) there be provided, by the auditor, four large paper books, in folio, bound up with velum & pastboard, two whereof to be delivered to the secretary, & two to the clarke of the House of Deputies, one to be a journall to each of them, the other for the faire entry of all lawes, acts, & orders, etc., that shall passe the magistrates and deputies, that of the secretaries to be the publike record of the country, that of the clarkes to be a book onely of coppies.

  That the secretary & clarke for the deputies shall briefly enter into their journals, respectively, the title of all bills, orders, lawes, petitions, etc., which shal be presented & read amongst them, what are referd to committees, & what are voted negatively or affirmatively, & so for any addition or alteration.

  That all bills, lawes, petitions, etc, which shal be last concluded amongst the magistrates, shall remaine with the Governor till the latter end of that session, & such as are last assented to by the deputies shall remaine with the speaker till the said time, when the whole Courte shall meete together, or a committee of magistrates & deputies, to consider what hath passed that session, where the secretary & clarke shall be present, & by their journals call for such bils, etc, as hath passed either house, & such as shall appeare to have passed the magistrates & deputies shall be delivered to the secretary to record, who shall record the same within one month after every session, which being done, the clarke of the deputies shall have liberty, for one month after, to transcribe the same into his booke; & such bills, orders, etc, that hath onely passed the magistrates, shall be delivered to the secretary to keepe upon file, & such as have onely passed the deputies shal be delivered to their clarke to be kept upon file, in like manner, or otherwise disposed of, as the whole Court shall appoint; that all lawes, orders, & acts of Courte, contained in the ould bookes, that are of force, & not ordered to be printed, be transcribed in some alphabeticall or methodicall way, by direction of some committee that this Courte shall please to appoint, & delivered to the secretary to record in the first place, in the said booke of records, & then the acts of the other sessions in order accordingly, & a coppy of all to be transcribed by the clarke of the deputies, as aforesaid.

  28

  [Towns of Wells, Gorgiana, and Piscataqua Form an Independent Government]

  Text is complete and taken from Kavenaugh, Foundations of Colonial America, 1: 263–64.

  July 1649

  This document is typical of those written during the Cromwellian era, when the interruption of the monarchy cast into doubt the continued legality of the charters written earlier in the century and coherent instructions from England were not forthcoming. While many colonies continued under their former organic documents, other colonies like this one felt compelled to refound themselves. Unremarked in the document itself but implied in the generic title, the document is notable for creating a federation out of the three towns. Documents that created federal systems, among others, include the General Laws and Liberties of New Hampshire, 1680 [2]; the Pilgrim Code of Law, 1636 [20]; the Massachusetts Ordinance on the Legislature, 1644 [25]; the Organization of the Government of Rhode Island, 1642 [37]; the Fundamental Orders of Connecticut, 1639 [43]; the Structure of Town Governments, 1639 [45]; and the New Haven Fundamentals, 1643 [50]. Again we see the de facto use of an important American constitutional principle before there was a theoretical grounding other than that found in theology—in this case covenant theology. The three towns in this document later became part of the state of Maine, but during the colonial era were claimed by Massachusetts.

  Whereas the inhabitants of Piscataqua, Gorgiana, and Wells in the province of Maine, have here begun to propogate and populate these parts of the country, did formerly by power derivative from Sir Ferdinando Gorges, Knight, exercise the regulating the affairs of the country as nigh as we could according to the laws of England, and such other ordinances as was thought meet and requisite for the better regulating thereof. Now, forasmuch as Sir Ferdinando Gorges is dead, the country by their general letters sent to his heirs in June 1647 and 48, but by the said distractions in England no return is yet come to hand, and command from the Parliament not to meddle in so much as was granted to Mr. Rigley, most of the commissioners being departed the province, the inhabitants are for present in some distraction about the regulating of the affairs of these sites. For the better ordering whereof, till further order, power, and authority shall come out of England, the inhabitants with one free and univeranimus consent do bind themselves in a body politic, a combination to see these parts of the country and province regulated according to such laws as formerly have been exercised and such others as shall be thought meet, not repugnant to the fundamental laws of our native country, and to make choice of such governor or governess and magistrates as by most voices they shall think meet. Dated in Gorgiana, alias Accomenticus, the [   ] day of July 1649. The privileges of Accomenticus’ charter excepted.

  29

  [The Cambridge Agreement of October 4, 1652]

  The complete text is taken from The Records of the Town of Cambridge (Formerly Newtowne) Massachusetts, 1630–1703 (Cambridge: University Press, John Wilson and Son, 1901), 2: 99–100. The spelling is the same as in the original except that the German s has been transcribed as an English s, where appropriate.

  This agreement is simultaneously a reformation of the civil polity and a set of instructions from the town meeting to those individuals selected to act in their name between meetings. The practice of town meetings giving instructions to the elected officers and representatives was a common one in the colonies and was extended to colony-wide, and later state-wide, representative bodies. Often the purpose of the town meeting was to press for specific legislation, but many, as in this case, were designed to formalize fundamental community values and principles to guide the actions of those in government. Once again we see de facto popular sovereignty implied.

  At a Genrall meeting of the Towne ye 4th (10) 1652.

  Theis prpositions here under written were voted, and joyntly agreed uppon by the Inhabitants, for the instructions to be given to the Townsmen.

  That wt eur1 worke or buissines is by order of Court assigned to the Townsmen or injoyned on the Town That the Townsmen shall make due care to effect the same so as may best conduce to a publique good and no damage by neglect thereof

  2. That as often as they shall see needfull, they shall giue publique notice to the inhabitants to meet together and wt eur orders or determinations shalbe passed by a publique vote of the Towne, or are already made by the Towne or ye select men, that the Townsmen take due care to execute fullfill and accomplish the same with out respect of any mans person, according to yr best wisdome.

  3. That wt eur damage they shall conceiue or apprehend to come to the Towne, by any person with in or with out the Towne by appropriating intruding or damnifying or exceeding there owne due prportion in any wise, any of the Commons, landes or woodes, or other publique stocke liberties or interests of the Towne according to there best discretion they shall prvent and remoue the same.

  4. That they take due care for the maintenance and reparation and well ordering of all such thinges wherin the Towne hath a Common interest, as the meeting house Common gates and high wayes, Common heards and ye like.

  5. That they make such wholesome orders and impose such Penalties, and duly publish and execute the same as may best effect the execution of the premises.

  6. That the necessary charges yt shalbe expended in ye execution of the premises be yearly discharged by an equall rate, made by the Townsmen, and leuied by the Cunstable on ye seurall Inhabitants

  7. That The Cunstables giue in a yearly account of wt they receiue of the publique stocke of the Towne by rate or otherwise, and how they haue disbursed the same, the same to be done before ye yearly Election of the Townsmen, and kept uppon Record in a booke fairely written and in case the Cunstables shall faile herein, then to Continue in there office another yeare, except the Towne shall see meet otherwise to dispose.

  8. That the Surveyours of the high wayes take due care for the reparation of all the Comon high wayes with in ye towne, and keep uppon Record the names of Such persons as are improued therein during ye yeare, and deliur the same in a list fairely written to the Townsmen then in place at ye end of there year that so no man may be wronged in doing more than his due proportion.

  At the same time the buissines about stinting2 ye Cow Comon3 was debated, and by a publicke Vote agreed that it should be refferred to ye magestrates of the next County Cort in Midlesex, to determine wheth [   ] or Cow Common were already lawfully stinted.

  also there is chosen for a committe to effect this buissines with the Magestrates by prsenting ye true state of the buissines, mr Joseph Cooke John Bridge, Gregory Stone, Edward Goffe Ri: Jacson and Edward Winship.

  30

  [Puritan] Laws and Liberties

  The text is based on the one found in Shurtleff and Pulsifer, Vol. ii, Laws, 147–67. The text is here reproduced only in part since the document is a revision of The Pilgrim Code of Law and therefore repeats much of what is found in the earlier document. The shorthand in the earlier document is tortuous, so changes have been made for the modern reader, but these are minimal.

  September 29, 1658

  A revision of the Pilgrim Code of Law, 1636 [20], this is simultaneously a code of law, an amended version of the earlier constitution, and thus a constitution itself. The colony of Plymouth, almost from the beginning, was composed of several towns, each with its own covenant and town meeting. Thus, like the nearby Massachusetts Bay Colony, Plymouth had a functioning federal system. The Puritans begin the present document, as they did the earlier one, by rehearsing the basis for their action. They refer to both their charter and their founding covenant, the Plymouth Combination, 1620 (The Mayflower Compact [3]), as the grounding for their civil body politic. Their careful discussion in this regard implies a de facto federal relationship between the colonies and the mother country, which essentially rehearses the position that will be taken during the Stamp Act crisis and on the eve of the Revolution to explain the colonial view of that relationship. A section-by-section comparison with the earlier Code of Law it replaces reveals an essential continuity since 1620.

  The Booke of the Generall Lawes and Liberties of the Inhabitants of the Jurisdiction of New Plymouth Collected out of the Records of the generall Court; and lately Reuised and established and deposed into an Alphabeticall order and published by the Authoritie of the generall Court held att New Plymouth the 29th day of September: Anno 1658

  • Bee Subject to every
  • ordinance of Man for
  • the Lords sake
  • 1 peter 2cond 13th

  To our beloued bretheren and Naighbours the Inhabitants of the Jurisdiction of New Plymouth; the Gour: Assistants and Deputies assembled att the generall Court of that Jurisdiction held att the Towne of Plymouth the 29th day of September Anno: Dom: 1658, wisheth grace and peace in our Lord Jesus Christ; it was the great privilidge of Israell of old and soe was acknowlidged by them Nehemiah the 9:13 That God gaue them right Judgments and true lawes; for God being the God of order and not of confusion hath Comaunded in his word; and put man into a capasitie in some measure to obserue and bee guided by good and wholsome lawes which are soe fare good and wholsome; as by how much they are deriued from and agreeable to; the Ancient platforme of Gods lawe; for although sundry pticulares in the Judiciall law which was of old jnioyned to the Jewes: did more especially (att least in some cercomstances) befitt their Pedagogye; yett are (they for the maine) soe exemplary being grounded on principalls of morall equitie as that all men; (Christians especially) ought alwaies to haue an eye thervnto; in the framing of theire Politique Constitutions; and although seuerall of the heathen National whoe were Ignorant of the true God and of his lawe haue bine famous in theire times for the enacting and execution of such lawes as haue proued profitable for the Gourment of theire Comonwealth in the times wherin they liued; yett notwithstanding theire exelencye appeered so fare; as they were founded vpon grounds of morall equitie which hath its originall from the lawe of God; and accordingly wee whoe haue bine actors in the framing of this smale body of lawes together with other vsefull Instruments who are gone to theire rest; can safely say; both for ourselues and them; that wee haue had an eye principally and primarily vnto the aforsaid platforme; and Secondaryly vnto the Right Improuement of the liberteis graunted vnto vs by our Superiours the state of England att the first begining of this infant plantation which was to enact such lawes as should most befitt a state in the nonage therof; not rejecting or omiting to obserue such of the lawes of our Natiue Countrey as would conduce vnto the good and grouth of soe weake a begining as ours in this Wilderness as any Impartiall eye not forestaled with prejudice may eazely descerne in the pusall1 of this smale booke of the lawes of our Collonie; The prmises duely considered might worke euery consiencious sperit to faithfull obeidience; and although wee hold and doe affeirme that both Courts of Justice and Majestrates; whoe are the minnesters of the lawe are esencially Ciuill; Notwithstanding wee conceiue that as the Majestrate hath his power from God soe vndoubtedly hee is to Improue it for the honor of God; and that in the vphoulding of his worship and seruice and against the contrary; with due respect alsoe to bee had vnto those that are really consciencious; though differing and discenting in some smaller matters; but if any really or in the pretence of consience shall professe that which eminently tendeth to the Invndation of Ciuill State and violation of Naturall bonds or the ouerthrow of the Churches of God or of his Worship; that heer prudence is to bee Improued in a speciall manor in the enacting and execution of lawes; It hath bine our endeauors in framing of our lawes that nothinge should bee found amongst them but that which fall vnder the same pticulares; wee haue likewise reduced them to such order as they may most conduce to our vtillitie and profitt; posibly it may bee that weaknes may appeer in the composure of sundry of them for want of such plenty of able instruments as others are furnished withall; howeuer lett this suffice the gentle Reader; that our ends are to the vtmost of our powers; in these our endeauors to promote both Church and State both att the psent and for the future; and therfore soe fare as wee haue aimed att the glory of God and comon good; and acted according to God; bee not found a Resister but obeidient; least therby thou Resist the ordinance of God and soe Incurr the displeasure of God vnto damnation; Romans 13:2:

  A Declaration demonstrating the warrantable grounds and proceedings of the first associates of the Gourment of New Plymouth in theire laying the first foundation of the Gourment in this Jurisdiction for makeing of lawes and disposing of lands and all such thinges as shall or may Conduce to the welbeing of this Corporation of New Plymouth;

  Whereas John Carver William Bradford Edward Winslow William Brewster Isacke Allerton and diuers others the subjects of our late Sour:2 Lord Kinge James by the grace of God Kinge of England Scotland ffrance and Ireland Defendor of the faith did in the eighteenth yeare of his Raigne of England ffrance and ireland; and of Scotland the fifty fourth which was in the year of our Lord God one thousand six hundred and twenty; vndertake a voyage into that pte of America called Verginnia or New England thervnto adjoyning; there to erect a plantation and Collonie of English; Intending the Glory of God the enlargment of his Maties dominnions and the speciall good of the English Nation.

  And Wheras by the good Prouidence of God the said John Caruer William Bradford Edward Winslow William Brewster Isacke Allerton and theire associates ariued in New England aforsaid in the harbour of Cape Cod or Paomett Scittuate and being in New England aforsaid; where all the said psons entered into a Ciuill Combination; being the eleuenth day of Nouember in the yeare aforemencioned; as the subjects of our said Sour: Lord the Kinge; to become a body Pollitique binding our selues to obserue such lawes and ordinances and obey such officers as from time to time should bee made and Chosen for their well ordering and guidance; and thervpon by the fauor of the Almighty; began the first Collonie in New England; there being then none other within the said Continent; att a place Called by the Natiues Apaum alliis Patuxett; and by the English New Plymouth; all which Lands being void of Inhabitants; Wee the said John Carver William Bradford Edward Winslow William Brewster Isacke Allerton and the rest of our Associates; entering into a league of Peace with Massasoiett since called Woosamequen Prince or Sachem of these ptes; hee the said Massasoiett freely gaue them all the lands adjacent to them; and theire heires for euer, acknowlidging himselfe content to become the subject of our Sour Lord the Kinge aforsaid his heires and Successors and takeing protection of vs the said John Carver William Bradford Edward Winslow William Brewster Isacke Allerton and theire Associates the naturall subjects of our Sour: Lord the Kinge aforsaid But haueing noe speciall letters Patents for the said ptes of New England but onely the generall leaue and libertie of our Consiences in the publicke worship of God where euer wee should settle; being therefore now settled and requiring speciall lycence and Comission from his Matie3 for the ordering of our affaires vnder his graciouse protection; had sundry Comissions made and Confeirmed by his Maties Councell for New England to John Peirse and his associates; whose names wee onely made vse of and whose associates wee were in the late happy and memorable Raigne of our said Sour: Lord King James; But finding our selues still straightened;4 and a willingnes in the honoble Councell aforsaid to enlarge vs; ptely in regard of the many difficulties wee had vndergone; and ptely in regard of the good service wee had done; as well in releiueing his Maties Subjects as otherwise wee procured a further enlargement vnder the name of Willam Bradford aforsaid and his Associates whose names wee likewise vsed; and whose associates as formerly wee still are; By vertue of which said letters Pattents libertie is giuen to vs deriuatory from our Sour: Lord King Charles bearing date the thirteenth of January 1629 being the fift yeare of his raigne of England Scotland ffrance and Ireland &c and signed by the Right honoble Robert Earle of Warwicke in the behalfe of his Maties said Councell for New England; and sealed with theire Comon seale to frame and make orders ordinances and Constitutions for the ordering disposing and Gouning of our psons and distributeing of our Lands within the said Lymetts To bee holden of his Matie his heires and successors as of his mannor of East greenwich in the County of Kent in free and Comon Soccage and not in Capite nor by Knights seruice,5 viz: all that pte of America and tract and tracts of land that lyeth within or between a sertaine Rivolett or Rundelett comonly called Coahassett alliis Conahassett towards the north; and the Riuer called Narrangansett Riuer towards the south and the great Westerne Ocean towards the East; and within and between a straight line directly extending into the maine towards the west; from the mouth of the said Riuer called Narranganssett Riuer to the vtmost bounds and lymetts of a Countrey or place in New England called Pocanacutt alliis Puckanakicke alliis Sowamsett doth extend; together with the one halfe of the said Riuer called Narrangansetts; and the said Riuolett or Rundelett called Coahassett allis Conahassett; and all lands Riuers waters hauens creekes ports ffishings fowlings; and all heredetiments profitts Comodities and emoluments whatsoeuer; Scittuate lying and being arising within or between the said lymetts or bounds or any of them; furthermore all that Tract or pte of land in New England or pte of america aforsaid which lyeth within or between; and extendeth it selfe from the vtmost lymetts of Cobbasecontee alliis Comacecontee which adjoyneth to the Riuer of Kennebecke alliis Kennebekicke towards the westerne Ocean; and a place called the falls at Nequamkicke in America aforsaid; and the space of fifteen English miles on each side of the said Riuer comonly called Kenebecke Riuer; that lyeth within the said bounds Eastwards Westwards Northwards and southwards last aboue mentioned; and all lands grounds soyles Riuers waters ffishings heridetiments and prof fitts whatsoeuer scittuate lying and being arising happening or accrewing in or within the said lymetts or bounds or either of them; together with free Ingresse egresse and Regresse with shipps boates shallops and other vessels from the sea called the westeren ocean; to the Riuer called Kennebecke and from the said Riuer to the said Westeren Occean; together with all prorogatiues Rights Royalties Jurisdictions priuilidges franchises liberties and amunities and alsoe marine liberties with the escheats and causualties therof; the Admiraltie Jurisdiction excepted; with all the Interest right title claime and demaund whatsoeuer which the said Councell and theire successors now haue or ought to haue or may haue or require heerafter in or to any of the said Tract or portion of lands heerby mencioned to bee graunted; or any the pmises in as free large ample and benificiall manor to all Intents and constructions whatsoeuer as the said Councell by vertue of his Maties said letters may or can graunt; To haue and to hold the said Tract and tracts of land and all and singulare the pmises aboue mencioned to bee graunted with theire and euery of theire appurtenances; To the said Willam Bradford his heires associates and assignes for euer To the onely proper vse and absolute behoofe of the said Willam Bradford his heires associates and assignes for euer; yeilding and paying vnto our said Sour: Lord the Kinge his heires and successors for euer; one fift pte of the Oare of the mines of Gould and siluer; and one other fift pte therof to the Presedent and Councell; which shalbee had posessed and obtained within the precincts aforsd for all seruices and demaunds whatsoeuer; allowing the said Willam Bradford his associates and assignes and euery of them his and theire agents tenants and servants; and all such as hee or they shall send or Imploy about his said pticulare plantation; shall and may from time to time freely and lawfully goe and returne trad or trafficke as well with the English as any the Natiues within the precincts aforsaid; with libertie of fishing vpon any pte of the sea coast and sea shores of any the seas or Ilands adjacent; and not being Inhabited or otherwise disposed of by order of the said Presedent and Councell forbiding all others to traffick with the Natiues or Inhabitants in any of the said Lymetts; without the speciall leaue of the said Willam Bradford his heires and associates; and allowing the said Willam Bradford his heires and associates to take apprehend seize and make prise of all such psons theire Shipes and goods as shall attempt to Inhabite or trad with the salvage people as aforsaid;

  Morouer Wheras in the first begining of this Collonie diuers Marchants and others of the Citty of London and elsewhere adventured diuers sumes of money with the said John Caruer William Bradford Edward Winslow William Brewster Isacke Allerton and the rest of theire asosiates on certaine tearmes of ptenorship6 to continew for the tearme of seauen yeares the said tearm being expired; the plantation by reason of manifold losses and Crosses by sea and land in the begining of soe great a worke being largly Indebted and noe meanes to pay the said debtes but by the sale of the whole and the same being put vpon sale; the said William Bradford Edward Winsow William Brewster Isacke Allerton and other our associates the Inhabitants of New Plymouth and elswhere being loth to bee depriued of our labours bought the same; for and in consideration of eighteen hundred pounds sterling viz: all and singulare the priuilidges lands goods Chattles ordinance amunition or whatsoeuer appertained to the said plantation or the adventures; with all and singulare the priuilidges thervnto belonging; as appeers by a deed between the said Isacke Allerton then agent for the said William Bradford and his Associates on the one pte; and John Pococke Robert Keine Edward Basse James Sherley and John Beachamp on the other pte being thervnto deputed by the said Marchants and the rest adventuring as aforsaid; as appeers by a Deed bearing date the sixt of Nouember in the third yeare of the Raigne of our Sour: Lord Charles by the grace of God Kinge of England Scotland ffrance and Ireland

  Anno Dom: 1627 one thousand six hundred twenty and seauen; Bee it Knowne vnto all men by these psents that according to our first Intents for the better effecting the glory of God; the Inlargment of the dominnions of our said Sour: Lord the Kinge, and the speciall good of his subjects by vertue as well of our Combination aforsaid; as alsoe the seuerall graunts by vs procured; in the Names of John Peirce and William Bradford theire heires and associates together with our lawful right in respect of vacancye donation or Purchase of the Natiues and our full purchase of the adventures before expressed; haue giuen vnto and alloted assigned and graunted to all and euery pson and psons whose name or names shall follow vpon this publicke Record such proportion or proportions of Grounds with all and singulare the priuilidges thervnto belonging as aforsaid to him or them his or theire heires and Assignes Successiuely for euer to bee holden of his Maties of England his heires and Successors as of his manor of East greenwich in the Countey of Kent in free and comon Sockage and not in Capitie nor by Knights Service yeilding and paying to our said Sou: Lord the Kinge his heires and Successors for euer one fift pte of the Oare of the mines of Gould and siluer and one other fift pte to the psedent and Councell which shalbee had possesed and obtained as aforsaid and whatsoeuer lands are graunted vnto any by the said William Bradford Edward Winslow William Brewster Isaack Allerton or their heires or Associates as aforsaid being acknowlidged in publicke Court and brought to this booke of Records of the seuerall Inheritances of the Subjects of our Soueraigne Lord the King within this Gouerment; It shalbee lawfull for the Gour of New Plymouth aforsaid from time to time and att all times for all Intents and purposes; the said ptie or pties his or theire heires or assignes for euer; To haue and to hold the said portion of lands soe graunted bounded and recorded as aforsaid with all and singulare the Apurtenances thervnto belonging to the onely proper and Absolute vse and behoofe of the said ptie or pties his or theire heires and Assignes for euer;

  Wee the Associates of New Plymouth coming hether as freeborne Subjects of the State of New England Indowed with all and singulare the privilidges belonging to such being Assembled Doe ordeine constitute and enacte that noe acte Imposition law or ordinance bee made or Imposed vpon vs att prsent or to come but such as shalbee made and Imposed by consent of the body of the Associates or theire Representatives legally assembled, which is according to the free liberties of the State of England;

  It is further enacted

  That all our Courts bee kept att the Towne of Plymouth except the Gour and Assistants shall see Reason to keep som Courts of Assistants elswhere within this Gourment.

  Whereas by the first Associates of this Gourment the Courts of Election were held in the month of January Anually and afterwards in the month of March Anually; By reason of the vnseasonablenes of those times of the yeare; It is enacted by the Court and the Authoritie therof That the election Courts bee holden the first Tusday in June Annually; And the other Generall Courts bee holden the first Tusday in October and the first Tusday in March Anually; and that the Courts of Assistants bee holden the first Tusday in August the first Tusday in December the first Tusday in ffebrewary and the first Tusday in May Anually.

  It is enacted by the Court and the Authoritie therof that all such as shalbee admited freemen of this Corporation shall stand one whole yeare propounded to the Court viz: to bee propounded att one June Court and to stand so propounded vntill the June Court following and then to bee admited if the Court shall not see cause to the Contrary.

  Wheras A Comittee was chosen viz: Mrh Tho: Prence Mr Willam Collyare Mr Tho: Dimmacke Mr James Cudworth Mr Josias Winslow John Dunham senir. Gorge Soule and Constant Southworth to consider of the proposition propounded by the deputies att the Court held in October 1650 concerning the major pte of the Courts to order the adjournments and desolutions of the generall Courts and the makeing and repealing of lawes they the said Comittee declared theire minds to bee that matters in the aforsaid respects to rest vnaltered as they were and that for the future as formerly in the makeing and repealing of lawes and adjornment of Courts wherin Comittes are resquisite the majestrates and deputies bee considered as one body.

  Wheras diuers actes and orders touching the making and repealing of lawes att June Courts and the adjournments therof is rendered with a dubiouse Interpretation; and this Court haueing by propositions to the freemen of the seuerall Townships desired theire answares in order to the regulateing therof but not receiueing any answare from sundry of them haue seen cause to declare theire owne sence therof and therfor doe enact That fitt and able psons bee anually chosen out of the freemen to attend June courts and the seuerall adjornments therof by the approued Inhabitants quallified as in such case is prouided of this Jurisdiction in theire respectiue townshipps for deputies vnto whom with the majestrates as the body Representatiue is comitted full power for the makeing and repealing of all lawes as vpon theire seriouse considerations they shall find meet for the publicke weale of this Jurisdiction and that then onely such lawes bee enacted or repealed except the Gour for the time being shall see waightey and nessesary cause by the complaint of the freemen or otherwise to call a special Court either of the whole body of the ffreemen or theire deputies; the freemen of this Jurisdiction being left to theire liberties to send theire voate by proxey for the choise of Gour Assistants Comissioners and Treasurer in such way as by order of Court is alreddy prouided and this order to stand in full force till the whole body of ffreemen shall take further order therin; It is alsoe further provided that vpon notice giuen in an orderly way to the Gour by the major pte of the ffreemen of this Jurisdiction of theire apprehensions of a nessesitie of the body of ffreemen to come together; then the Gour for the time being shall take the first oppertunitie to Summon in the body of ffreemen to aduise and acte ther as the matter shall require;

  the oath of a ffreeman.

  You shalbee truely Loyall to our Sour Lord the King his heires and Successors. You shall not speake or doe deuise or aduise Any thinge or things Act or Actes directly or Indirectly by Land or Water that doth shall or may tend to the destruction or ouerthrow of these prsent Plantations or Townshipes of the Corporation of New Plymouth neither shall you suffer the same to bee spoken or done but shall hinder oppose and descouer the same to the Gour And assistants of the said Collonie for the time being; or some one of them; you shall faithfully Submitt vnto such good and wholsome Lawes and ordinances as either are or shalbee made for the ordering and Gourment of the same; and shall Indeuor to aduance the grouth and good of the seuerall townshipes and plantations within the Lymetts of this Corporation by all due meanes and courses; All which you pmise and Sweare by the Name of the great God of heauen and earth simply truely and faithfully to pforme as you hope for healp from God who is the God of truth and punisher of falchood.

  It is enacted by the Court and the Authoritie therof; That on the first Tusday in June anually there shalbee a Gour and seauen Assistants chosen to Rule and Gouerne the said Plantations and Townshipes within the Lymetts of this Corporation and this election to bee made onely by the ffreemen therof;

  And that the Gour in due season by warrant directed to the seuerall Cunstables in the Name of his Matie giue warning to the ffreemen either to make their psonall appeerance att the Courts of election or to send theire voates by proxey for the choise of officers according to the following order; and that all our Courts warrants Summons and comaunds bee all done directed and made in the Name of our Sour Lord the King

  Wheras in regard of age disabilletie of body vrgent occations and other Inconveniencies that doe acrew sundry of the ffreemen are hindered that they can not appeer att Courts of election, In consideration wherof it is enacted by the Court and the Authoritie therof that any freeman of this Corporation shall haue libertie to send his voate by proxey for the choise of Gour Assistants Comissioners and Treasurer; And that the deputies of the seuerall townes chosen to attend the Courts of election and the seuerall adjournments therof shall in the towne meeting in which they are chosen they or either of them giue notice vnto the freemen that those that Intend not to make theire psonall appeerance att the Court of election are now to giue in theire voates Sealed vp for the chosing of Gour Assistants Comissioners and Treasurer; and the said deputies to obserue by a list of their Names whoe hath voted and whoe hath not; The which voates soe brought in to bee ymediately Sealed vp and brought vnto and deliuered in open Court by the said deputies.

  It is enacted by the Court that att Courts of election the voates of all the ffreemen prsent bee first read and Next after them the deputies of the suerall townes shall orderly prsent the proxey of theire owne towne.

  It is enacted by the Court and the Authoritie therof that other public offecers besides Gour and Assistants bee chosen and established att the Court in June Anually viz: Comissioners and Treasurrer; and that other Inferior officers; as Cunstables grandjurymen and Survayors for the highwaies bee then alsoe confeirmed if approued by the Court.

  It is enacted by the Court and the Authoritie therof that incase there shalbee occation for a Corroner that the Next majestrate where such accedent falls shall sitt as Corrowner and execute that office according to the Custome of England as near as may bee.

  It is enacted by the Court and the Authoritie therof that all our Courts summons and comaunds bee all done directed and made in the Name of his Matie of England our dread Sour and alsoe that all Ciuill officers and minnesters of Justice in this Jurisdiction to be sworne in his said Maties name and alsoe that the oath of fidelitie and all other oathes shall goe in that tenure.

  the office of the gour:

  The office of the Gour for the time being consisteth in the execution of such lawes and ordinances as are or shalbee made and established for the good of this Corporation according to the bounds and Lymitts therof viz: in calling together or aduising with the Assistants or Councell of the said Corporation vpon such matteriall occations (or soe seeming to him) as time shall bring forth, In wch Assembly and all other the Gour to propound the Occation of the Assembly and haue a double voyce therin; if the Assistants Judge the case too great to bee desided by them and refer it to the Genrall Court then the Gourr to Summon a Courty by warning all the ffreemen that are then extant; as alsoe incase the major pte of the ffreemen seeing waighty cause for the whole body to meet together and in an orderly way acquaint him with theire desires therof; Then hee shall Summon the whole body of ffreemen together with all convenient Speed; and there alsoe to propound causes and goe before the Assistants in the examination of pticulares and to propound such Centance as shalbee determined; further it shalbee lawfull for him to Arrest and comitt to Ward any offendors; provided that with all Convenient Speed hee shall bring the cause to hearing either of the Assistants or generall Court according to the nature of the offence; Alsoe it shalbee lawfull for him to examine any suspicious psons for euill against the Collonie as alsoe to Interupt or oppose such letters as hee conceiueth may tend to the ouerthrow of the same; and that this office continew one whole yeare and noe more without renewing by election;

  the oath of the gour:

  You Shalbee truely Loyall to our Sour Lord King Charles his heires and Successors Also according to that measure of Wisdome vnderstanding and deserning giuen vnto you shall faithfully Equally and Indifferently without respect of psons Adminnester Justice in all Cases coming before you as the Gour of New Plymouth; You shall in like manor faithfully duely and truely exequte the Lawes and ordinances of the Same; and shall laboure to Advance and further the good of The Townshipes and plantations within the Lymitts therof to the vttermost of youer power and oppose any thing that shall seeme to hinder the same Soe healp you God whoe is the God of truth and the punisher of falshood.

  the office of ann assistant.

  The office of an Assistant for the time being consisteth in appeering att the Gournors Summons and in giueing his best advise both in publicke court and private Councell with the Gour for the good of the seuerall Townships and plantations within the lymetts of this Gourment; not to disclose but to keep secrett such things as concerne the publique good and shalbee thought meet to bee concealed by the Gour and Councell of Assistants in haueing a speciall hand in the examination of publicke offendors and in contriueing the affaires of the Collonie to haue a voyce in the censuring of such offendors as shalbee brought to publicke Court; That if the Gour haue occation to bee absent from the Collonie for a short time by the Gour with concent of the rest of the Assistants hee may bee deputed to Gouerne in the absence of the Gour alsoe it shalbee lawfull for him to examine and comitt to ward where any occation ariseth where the Gour is absent prouided the pson bee brought to hearing with all convenient Speed before the Gour and the rest of the Assistants; alsoe it shalbee lawfull for him in his Maties Name to direct his warrants to any Cunstable within the Gourment whoe ought faithfully to execute the same according to the Nature and tenure therof and may bind ouer psons for matters of crime to answare att the next ensueing Court of his said Mtie after the fact comitted or the pson apprehended;

  the oath of an assistant.

  You shall all sweare to bee truely Loyall to our Sour Lord King Charles his heires and Successors you shall faithfully truely and Justly according to the measure of deserning and descretion God hath giuen you bee Assistant to the Gour for this prsent yeare for the execution of Justice in all cases and towards all psons coming before you without parciallitie according to the Nature of the Office of an Assistant read vnto you; Morouer you shall dilligently duely and truely see that the Lawes and ordinances of this Corporation bee duely executed and shall labour to Advance the good of the seuerall plantations within the lymetts therof and oppose any thinge that shall hinder the same by all due meanes and courses Soe healp you God whoe is the God of truth and punisher of falshood;

  It is enacted by the Court and the Authorite thereof that the Gour and two of the Assistants at the least shall as occation shalbee offered in time convenient determine in such triviall cases viz. vnder forty shillinges between man and man as shall come before them as alsoe in offences of smale Nature shall determine doe and execute as in wisdome God shall direct them;

  It is enacted by the Court and the authoritie therof That att euery election Court some one of the Assistants or some other suficient man bee chosen Treasurer for the yeare following whose place it shalbee to demaund and receiue in whatsoeuer sume or sumes shall appertaine to the Royaltie of the place either coming in by way of fine Amercment or otherwise and shall Improue the same for the publicke benefitt of this Corporation by order of the Gourment.

  It is further enacted by the Court that the Treasurer shall att the election Courts Anually giue in his accounts of his receipts and paiments for his yeare to any that the Court shall appoint and to bee entered vpon Record and thervpon to bee discharged.

  It is likewise enacted by the Court that the Treasurer by vertue of his said office shall take order that all debts due to the Countrey bee seasonbly brought in vnto such place or places as hee shall appoint that soe all dues and debts due vnto any pson or psons from the Contrey may bee seasonably and Satisfactorily defrayed except the publice officers wages which is otherwise prouided for.

  It is enacted by the Court that it shalbee in the libertie of the Treasurer after a month is past after Judgment by his warrant to require in any fine as hee shall see reason;

  Wheras the Court haue taken notice that diuers of the ffreemen of this Corporation doe neither appeer att Courts of election nor send theire voates by proxey for the choise of majestrates It is enacted by the Court and the authoritie therof That whosoeuer of the ffreemen of this Corporation that shall not appeer att the Court of election att Plymouth in June annually nor send theire voate by proxey according to order of Court for the Choise of Gour Assistants Comissioners and Treasurer shall be fined to the Collonies vse the sume of ten shillinges for euery such default; vnlesse some vnavoidable Impediment hinder such in theire appeerance.

  Memorand that an oath bee formed for the Treasurer and next entered.

  the oath of the treasurer.

  You shall faithfully serue in the office of the Treasurer in the Jurisdiction of New Plymouth for this prsent yeare during which time you shall dillegently enquire after demaund and receiue whatsoeuer sum or sumes shall appertaine to this Gourment; arising by way of fine amersment Royaltie or otherwise and shall faithfully Improue the same for the vse of the Gourment and according to order dispose therof as occation shall require you shalbee reddy to giue in a true account vnto the Court of youer actings in youer said office yearly att June Courts; Soe healp you God

  the oath of a grandjuryman.

  You shall true prsentment make of all thinges giuen you in charge you shall prsent Nothing of Mallice or illwill youer owne Councell and youer fellowes in reference to this oath you shall well and truely keep soe healp you God.

  the oath of the clarke of the court.

  You shall faithfully serue in the office of the Clarke of the Court for the Jurisdiction of New Plymouth You shall attend the Generall Courts held for this Gourment att Plymouth Aforsaid and the suerall Adjournments therof; and the Courts of Assistants and there Imploy youerselfe in such occations as are behoofull to youer said place and office you shall likewise Attend such other meetings of the majestrates of like Nature as aboue expressed that shall or may fall out in the Interims of time betwixt the said Courts you shall not disclose but keep secrett such things as concerne the publicke good and shalbee thought meet to bee Concealled by the Gour and Councell of Assistants You shall faithfully Record all such thinges as you shall haue order from Authoritie to Comitte to publicke Record and shall faithfully keep the publicke Records of this Jurisdiction Soe healp you God who is the God of truth and the punisher of falshood; ...

  31

  [An Act of the General Court]

  The text is taken from Shurtleff, Massachusetts Colonial Records: Vol. iv, 25–26.

  June 10, 1661

  The charter of 1629 creating the Massachusetts Bay Company not only had the standard provision providing for local self-government but also had the peculiarity of failing to make any specific reference to parliamentary authority. This was interpreted to mean, at least by the colonists, that the English Parliament had no power over the colony. The Massachusetts Body of Liberties, 1641 [22], also implied that the colony was bound only by laws of its own choosing. The document below was passed by the Massachusetts General Court in a bold attempt to essentially declare their autonomy from allegiance to the king as well, or at least to render that allegiance so tenuous as to make it meaningless. This move to enlarge the liberties of the colonies is one more major attempt by the colonists to create a political foundation based completely upon their own consent. Indeed, the document spells out clearly the major principles that underlay the evolving colonial constitutionalism. The Crown eventually revoked the colony’s charter in 1684, and this document was a major reason for that royal action.

  concerning our liberties

  1. We conceive the patent (under God) to be the first and main foundation of our civil polity here, by a Governor and Company, according as is therein expressed.

  2. The Governor and Company are, by the patent, a body politic, in fact and name.

  3. This body politic is vested with power to make freemen.

  4. These freemen have power to choose annually a governor, deputy governor, assistants, and their select representatives or deputies.

  5. This government has power also to set up all sorts of officers, as well superior as inferior, and point out their power and places.

  6. The governor, deputy governor, assistants, and select representatives or deputies have full power and authority, both legislative and executive, for the government of all the people here, whether inhabitants or strangers, both concerning ecclesiastics and in civils, without appeal, excepting law or laws repugnant to the laws of England.

  7. The government is privileged by all fitting means (yea, if need be, by force of arms) to defend themselves, both by land and sea, against all such person or persons as shall at any time attempt or enterprise the destruction, invasion, detriment, or annoyance of this plantation, or the inhabitants therein, besides other privileges mentioned in the patent, not here expressed.

  8. We conceive any imposition prejudicial to the country contrary to any just law of ours, not repugnant to the laws of England, to be an infringement of our right.

  concerning our duties of allegiance to our sovereign lord, the king

  1. We ought to uphold and, to our power, maintain his place, as of right belonging to Our Sovereign Lord, The King, as holden of His Majesty’s manor of East Greenwich, and not to subject the same to any foreign prince or potentate whatsoever.

  2. We ought to endeavor the preservation of His Majesty’s royal person, realms, and dominions, and so far as lies in us, to discover and prevent all plots and conspiracies against the same.

  3. We ought to seek the peace and prosperity of Our King and nation by a faithful discharge in the governing of his people committed to our care.

  First, by punishing all such crimes (being breaches of the First or Second Table) as are committed against the peace of Our Sovereign Lord, The King, his Royal Crown, and dignity.

  Second, in propagating the Gospel, defending and upholding the true Christian or Protestant religion according to the faith given by our Lord Christ in His word; our dread sovereign being styled “defender of the faith.”

  The premises considered, it may well stand with the loyalty and obedience of such subjects as are thus privileged by their rightful sovereign (for Himself, His Heirs, and Successors forever) as cause shall require, to plead with their prince against all such as shall at any time endeavor the violation of their privileges ... And, also, that the General Court may do safely to declare that in case (for the future) any legally obnoxious, and flying from the civil justice of the state of England, shall come over to these parts, they may not here expect shelter.

  [1. ]The words “a true christian” were later struck out and the phrase in brackets substituted so that the last sentence read: “to perform as you hope for help from God....”

  [1. ]Hindrance, obstruction, or delay.

  [2. ]The archaic symbol for an English pound.

  [1. ]In the late Middle Ages, “to convent” someone meant to call him to an assembly.

  [1. ]A summary of these rights and their origins can be found in Donald S. Lutz, A Preface to American Political Theory (Lawrence: University Press of Kansas, 1992), chap. 3.

  [2. ]Provision of military equipment by a feif.

  [3. ]Maintenance allowance provided by a feif.

  [4. ]A tax paid by the eldest to retain title to property.

  [5. ]Inheritance tax.

  [1. ]This reads, “That what our work ...”

  [2. ]Making an allotment, apportioning, setting limits to.

  [3. ]A cow common was a field or group of fields owned by the town but set aside for anyone to graze his cattle. In effect, it was a town commons.

  [1. ]Perusal.

  [2. ]“Sovr,” or sovereign.

  [3. ]Majesty.

  [4. ]In serious straits, or in serious difficulties.

  [5. ]To be held without owing any of the traditional feudal duties, such as providing soldiers or military service.

  [6. ]Tenancy, held as a tenant.

• Back to Top

  8: Fundamental Orders of Connecticut

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 43: Fundamental Orders of Connecticut

  Accessed from oll.libertyfund.org/title/694/102633 on 2008-08-23

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  43

  Fundamental Orders of Connecticut

  The text, complete and with the original spelling, is taken from Thorpe, Federal and State Constitutions, 519–23.

  January 14, 1639

  Along with the Pilgrim Code of Law [20] and the Fundamental Articles of New Haven [46], this document is a candidate for being the earliest written constitution in America. It describes itself internally as a “combination” and “confederation,” although one could with equal truth call it a compact. It should be noted that this document, as well as the Pilgrim Code of Law, prominently displays oaths for officeholders as an essential part of the agreement, which underscores the importance of the other oaths for establishing government (see, for example, documents 4, 9, 15, 16, 47, and 65). In 1662 the king signed a new charter for the combined colonies of Connecticut and New Haven that essentially ratified the political system defined here. In 1776 the people of Connecticut adopted the charter as their new state constitution after removing references to the king. The 1776 constitution was replaced in 1816, which means that the Fundamental Orders of Connecticut effectively served as a constitution for 177 years. Like many of the colonial founding compacts and constitutions, the Fundamental Orders of Connecticut was not written in as orderly a manner as we would expect in modern documents. The reader must carefully consider the entire document, because institutions described toward the beginning of the document often have important components described later. As was usually the case with colonial constitutions, this document creates a federal political system.

  Forasmuch as it hath pleased the Allmighty God by the wise disposition of his diuyne1 pruidence so to Order and dispose of things that we the Inhabitants and Residents of Windsor, Harteford and Wethersfield are now cohabiting and dwelling in and vppon the River of Conectecotte and the Lands thereunto adioyneing; and Well knowning where a people are gathered togather the word of God requires that to mayntayne the peace and vnion of such a people there should be an orderly and decent Gouerment established according to God, to order and dispose of the affayres of the people at all seasons as occation shall require; doe therefore assotiate and conioyne our selues to be as one Publike State or Commonwelth; and doe, for our selues and our Successors and such as shall be adioyned to vs att any tyme hereafter, enter into Combination and Confederation togather, to mayntayne and prsearue the liberty and purity of the gospell of our Lord Jesus wch we now prfesse, as also the disciplyne of the Churches, wch according to the truth of the said gospell is now practised amongst vs; As also in o[u]r Cieuell2 Affaires to be guided and gouerned according to such Lawes, Rules, Orders and decrees as shall be made, ordered & decreed, as followeth:—

  1. It is Ordered, sentenced and decreed, that there shall be yerely two generall Assemblies or Courts, the [first] on the second thursday in Aprill, the other the second thursday in September, following; the first shall be called the Courte of Election, wherein shall be yerely Chosen fro[m] tyme to tyme soe many Magestrats and other publike Officers as shall be found requisitte: Whereof one to be chosen Gouernour for the yeare ensueing and vntill another be chosen, and noe other Magestrate to be chosen for more then one yeare; pruided allwayes there be sixe chosen besids the Gouernour; wch being chosen and sworne according to an Oath recorded for that purpose shall haue power to administer iustice according to the Lawes here established, and for want thereof according to the rule of the word of God, wch choise shall be made by all that are admitted freemen and haue taken the Oath of Fidellity, and doe cohabitte wthin this Jurisdiction, (Hauing been admitted Inhabitants by the major prt of the Towne wherein they liue,) or the mayor prte of such as shall be then prsent.

  2. It is Ordered, sentensed and decreed, that the Election of the aforesaid Magestrats shall be on this manner: euery prson prsent and quallified for choyse shall bring in (to the prsons deputed to receaue them) one single papr wth the name of him written in yt whome he desires to haue Gouernour, and he that hath the greatest number of papers shall be Gouernor for that yeare. And the rest of the Magestrats or publike Officers to be chosen in this manner: The Secrtary for the tyme being shall first read the names of all that are to be put to choise and then shall seuerally nominate them distinctly, and euery one that would haue the prson nominated to be chosen shall bring in one single paper written vppon, and he that would not haue him chosen shall bring in a blanke: and euery one that hath more written papers than blanks shall be a Magistrat for that yeare; wch papers shall be receaued and told by one or more that shall be then chosen by the court and sworne to be faythfull therein; but in case there should not be sixe chosen as aforesaid, besids the Gouernor, out of those wch are nominated, then he or they wch haue the most written paprs shall be a Magestrate or Magestrats for the ensueing yeare, to make vp the aforesaid number.

  3. It is Ordered, sentenced and decreed, that the Secretary shall not nominate any prson, nor shall any prson be chosen newly into the Magestracy wch was not prpownded in some Generall Courte before, to be nominated the next Election; and to that end yt shall be lawfull for ech of the Townes aforesaid by their deputyes to nominate any two who they conceaue fitte to be put to election; and the Courte may ad so many more as they iudge requisitt.

  4. It is Ordered, sentenced and decreed that noe prson be chosen Gouernor aboue once in two years, and that the Gouernor be always a member of some approved congregation, and formerly of the Magestracy wthin this Jurisdiction; and all the Magestrats Freemen of this Comonwelth: and that no Magestrate or other publike officer shall execute any prte of his or their Office before they are seuerally sworne, wch shall be done in the face of the Courte if they be prsent, and in case of absence by some deputed for that purpose.

  5. It is Ordered, sentenced and decreed, that to the aforesaid Courte of Election the seurall Townes shall send their deputyes, and when the Elections are ended they may prceed in any publike searuice as at other Courts. Also the other Generall Courte in September shall be for makeing of lawes, and any other publike occation, wch conserns the good of the Commonwealth.

  6. It is Ordered, sentenced and decreed, that the Gournor shall, ether by himselfe or by the secretary, send out summons to the Constables of eur3 Towne for the cauleing of these two standing Courts, on month at lest before their seurall tymes: And also if the Gournor and the gretest prte of the Magestrats see cause vppon any spetiall occation to call a generall Courte, they may giue order to the secretary soe to do wthin fowerteene dayes warneing; and if vrgent necessity so require, vppon a shorter notice, giueing sufficient grownds for yt to the deputyes when they meete, or else be questioned for the same; And if the Gournor and Mayor4 prte of Magestrats shall ether neglect or refuse to call the two Generall standing Courts or ether of them, as also at other tymes when to occations of the Commonwelth require, the Freemen thereof, or the Mayor prte of them, shall petition to them soe to doe: if then yt be ether denyed or neglected the said Freemen or the Mayor prte of them shall haue power to giue order to the Constables of the seuerall Townes to doe the same, and so may meete togather, and chuse to themselues a Moderator, and may prceed to do any Acte of power, wch any other Generall Courte may.

  7. It is Ordered, sentenced and decreed that after there are warrants giuen out for any of the said Generall Courts, the Constable or Constables of ech Towne shall forthwth give notice distinctly to the inhabitants of the same, in some Publike Assembly or by goeing or sending from howse to howse, that at a place and tyme by him or them lymited and sett, they meet and assemble themselues togather to elect and chuse certen deputyes to be att the Generall Courte then following to agitate the afayres of the comonwelth; wch said Deputyes shall be chosen by all that are admitted Inhabitants in the seurall Townes and haue taken the oath of fidellity; pruided that non be chosen a Deputy for any Generall Courte wch is not a Freeman of this Commonwelth.

  The a-foresaid deputyes shall be chosen in manner following: euery prson that is prsent and quallified as before exprssed, shall bring the names of such, written in seurall papers, as they desire to haue chosen for that Imployment, and these 3 or 4, more or lesse, being the number agreed on to be chosen for that tyme, that haue greatest number of papers written for them shall be dputyes for that Courte; whose names shall be endorsed on the backe side of the warrant and returned into the Courte, wth the Constable or Constables hand vnto the same.

  8. It is Ordered, sentenced and decreed, that Wyndsor, Hartford and Wethersfield shall haue power, ech Towne, to send fower of their freemen as deputyes to euery Generall Courte; and whatsoeuer other Townes shall be hereafter added to this Jurisdiction, they shall send so many deputyes as the Courte shall judge meete, a resonable prportion to the number of Freemen that are in the said Townes being to be attended therein; wch deputyes shall have the power of the whole Towne to giue their voats and alowance to all such lawes and orders as may be for the publike good, and unto wch the said Townes are to be bownd.

  9. It is ordered and decreed, that the deputyes thus chosen shall haue power and liberty to appoynt a tyme and a place of meeting togather before any Generall Courte to aduise and consult of all such things as may concerne the good of the publike, as also to examine their owne Elections, whether according to the order, and if they or the gretest prte of them find any election to be illegall they may seclud such for prsent from their meeting, and returne the same and their resons to the Courte; and if yt proue true, the Courte may fyne the prty or prtyes so intruding and the Towne, if they see cause, and giue out a warrant to goe to a newe election in a legall way, either whole or in prte. Also the said deputyes shall haue power to fyne any that shall be disorderly at their meetings, or for not coming in due tyme or place according to appoyntment; and they may return the said fynes into the Courte if yt be refused to be paid, and the tresurer to take notice of yt, and to estreete or levy the same as he doth other fynes.

  10. It is Ordered, sentenced and decreed, that euery Generall Courte, except such as through neglecte of the Gournor and the greatest prte of Magestrats the Freemen themselves doe call, shall consist of the Gouernor, or some one chosen to moderate the Court, and fower other Magestrats at lest, wth the mayor prte of the deputyes of the seuerall Townes legally chosen; and in case the Freemen or mayor prte of them through neglect or refusall of the Gouernor and mayor prte of the magestrats, shall call a Courte, that yt shall consist of the mayor prte of Freemen that are prsent or their deputyes, wth a Moderator chosen by them: In wch said Generall Courts shall consist the supreme power of the Commonwelth, and they only shall haue power to make laws or repeale them, to graunt leuyes, to admitt of Freemen, dispose of lands vndisposed of, to seuerall Townes or prsons, and also shall haue power to call ether Courte or Magestrate or any other prson whatsoeuer into question for any misdemeanour, and may for just causes displace or deale otherwise according to the nature of the offence; and also may deale in any other matter that concerns the good of this commonwelth, excepte election of Magestrats, wch shall be done by the whole boddy of Freemen: In wch Courte the Gouernour or Moderator shall haue power to order the Courte to giue liberty of spech, and silence vnceasonable and disorderly speakeings, to put all things to voate, and in case the vote be equall to haue the casting voice. But non of these Courts shall be adiorned or dissolued wthout the consent of the major prte of the Court.

  11. It is ordered, sentenced and decreed, that when any Generall Courte vppon the occations of the Commonwelth haue agreed vppon any sume or somes of mony to be leuyed vppon the seuerall Townes wthin this Jurisdiction, that a Committee be chosen to sett out and appoynt wt shall be the prportion of euery Towne to pay of the said leuy, prvided the Committees be made vp of an equall number out of each Towne.

  14th January, 1638, the 11 Orders abouesaid are voted.

  The Oath of the Gournor, for the Prsent

  I N.W. being now chosen to be Gournor wthin this Jurisdiction, for the yeare ensueing, and vntil a new be chosen, doe sweare by the greate and dreadful name of the everliueing God, to prmote the publicke good and peace of the same, according to the best of my skill; as also will mayntayne all lawfull priuiledges of this Commonwealth: as also that all wholsome lawes that are or shall be made by lawfull authority here established, be duly executed; and will further the execution of Justice according to the rule of Gods word; so helpe me God, in the name of the Lo: Jesus Christ.

  The Oath of a Magestrate, for the Prsent

  I, N.W. being chosen a Magestrate wthin this Jurisdiction for the yeare ensueing, doe sweare by the great and dreadfull name of the euerliueing God, to prmote the publike good and peace of the same, according to the best of my skill, and that I will mayntayne all the lawfull priuiledges therof according to my vnderstanding, as also assist in the execution of all such wholsome lawes as are made or shall be made by lawfull authority heare established, and will further the execution of Justice for the tyme aforesaid according to the righteous rule of Gods word; so helpe me God, etc.

  [1. ]In this document, as in others, the letters u and v are often interchanged. Divine is here effectively rendered divyne. The letters i and j are likewise often interchanged.

  [2. ]Civil.

  [3. ]Every.

  [4. ]Major.

• Back to Top

  9: 1776: Declaration of Independence (various drafts)

  Source:A chapter in Becker’s The Declaration of Independence: A Study on the History of Political Ideas (New York: Harcourt, Brace and Co., 1922).

  Accessed from oll.libertyfund.org/index.php?option=com_content&task=view&id=519&Itemid=264 on 2008/7/6

• Back to Top

  10: 1787: US Constitution

  Source: The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002).

  Accessed from oll.libertyfund.org/index.php?option=com_content&task=view&id=427&Itemid=264 on 2008/7/6

• Back to Top

  11: Wilson’s State House Yard Speech

  Colleen A. Sheehan, Friends of the Constitution: Writings of the “Other” Federalists, 1787-1788, edited by Colleen A. Sheehan and Gary L. McDowell (Indianapolis: Liberty Fund, 1998). Chapter: James Wilson Speech

  Accessed from oll.libertyfund.org/title/2069/156165 on 2008-08-20

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  James Wilson
  
  Speech

  State House, 6 October 1787, Pennsylvania Packet, 10 October 1787

  In this speech, one of the earliest defenses of the proposed Constitution, Wilson canvasses the major Anti-Federal objections. For responses to the speech, see A Democratic Federalist, Storing, 3:5; and Letter by an Officer of the Late Continental Army, Storing, 3:8.

  Mr. Chairman and Fellow Citizens, Having received the honour of an appointment to represent you in the late convention, it is, perhaps, my duty to comply with the request of many gentlemen, whose characters and judgments I sincerely respect, and who have urged that this would be a proper occasion to lay before you any information, which will serve to elucidate and explain the principles and arrangements of the constitution that has been submitted to the consideration of the United States. I confess that I am unprepared for so extensive and so important a disquisition: but the insidious attempts, which are clandestinely and industriously made to pervert and destroy the new plan, induce me the more readily to engage in its defence: and the impressions of four months constant attendance to the subject, have not been so easily effaced, as to leave me without an answer to the objections which have been raised.

  It will be proper, however, before I enter into the refutation of the charges that are alleged, to mark the leading discrimination between the state constitutions, and the constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve: and therefore upon every question, respecting the jurisdiction of the house of assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating fœderal powers, another criterion was necessarily introduced: and the congressional authority is to be collected, not from tacit implication, but from the positive grant, expressed in the instrument of union. Hence, it is evident, that in the former case, everything which is not reserved, is given: but in the latter, the reverse of the proposition prevails, and every thing which is not given, is reserved. This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights, a defect in the proposed constitution: for it would have been superfluous and absurd, to have stipulated with a fœderal body of our own creation, that we should enjoy those privileges, of which we are not divested either by the intention or the act that has brought that body into existence. For instance, the liberty of the press, which has been a copious subject of declamation and opposition: what controul can proceed from the fœderal government, to shackle or destroy that sacred palladium of national freedom? If, indeed, a power similar to that which has been granted for the regulation of commerce, had been granted to regulate literary publications, it would have been as necessary to stipulate that the liberty of the press should be preserved inviolate, as that the impost should be general in its operation. With respect, likewise, to the particular district of ten miles, which is to be the seat of government, it will undoubtedly be proper to observe this salutary precaution, as there the legislative power will be vested in the president, senate, and house of representatives of the United States. But this could not be an object with the convention: for it must naturally depend upon a future compact; to which the citizens immediately interested, will, and ought to be parties: and there is no reason to suspect, that so popular a privilege will in that case be neglected. In truth, then, the proposed system possesses no influence whatever upon the press; and it would have been merely nugatory, to have introduced a formal declaration upon the subject; nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.

  Another objection that has been fabricated against the new constitution, is expressed in this disingenuous form—“the trial by jury is abolished in civil cases.” I must be excused, my fellow citizens, if, upon this point, I take advantage of my professional experience, to detect the futility of the assertion. Let it be remembered, then, that the business of the fœderal constitution was not local, but general—not limited to the views and establishments of a single state, but co-extensive with the continent, and comprehending the views and establishments of thirteen independent sovereignties. When, therefore, this subject was in discussion, we were involved in difficulties, which pressed on all sides, and no precedent could be discovered to direct our course. The cases open to a jury, differed in the different states; it was therefore impracticable, on that ground, to have made a general rule. The want of uniformity would have rendered any reference to the practice of the states idle and useless: and it could not, with any propriety, be said, that “the trial by jury shall be as heretofore:” since there has never existed any fœderal system of jurisprudence, to which the declaration could relate. Besides, it is not in all cases that the trial by jury is adopted in civil questions: for causes depending in courts of admiralty, such as relate to maritime captures, and such as are agitated in the courts of equity, do not require the intervention of that tribunal. How, then, was the line of discrimination to be drawn? The convention found the task too difficult for them: and they left the business as it stands—in the fullest confidence, that no danger could possibly ensue, since the proceedings of the supreme court are to be regulated by the congress, which is a faithful representation of the people: and the oppression of government is effectually barred, by declaring that in all criminal cases, the trial by jury shall be preserved.

  This constitution, it has been further urged, is of a pernicious tendency, because it tolerates a standing army in the time of peace. This has always been a popular topic of declamation: and yet I do not know a nation in the world, which has not found it necessary and useful to maintain the appearance of strength in a season of the most profound tranquility. Nor is it a novelty with us; for under the present articles of confederation, congress certainly possesses this reprobated power: and the exercise of it is proved at this moment by the cantonments along the banks of the Ohio. But what would be our national situation, were it otherwise? Every principle of policy must be subverted, and the government must declare war before they are prepared to carry it on. Whatever may be the provocation, however important the object in view, and however necessary dispatch and secrecy may be, still the declaration must precede the preparation, and the enemy will be informed of your intention, not only before you are equipped for an attack, but even before you are fortified for a defence. The consequence is too obvious to require any further delineation; and no man, who regards the dignity and safety of his country, can deny the necessity of a military force, under the controul, and with the restrictions which the new constitution provides.

  Perhaps there never was a charge made with less reason, than that which predicts the institution of a baneful aristocracy in the fœderal senate. This body branches into two characters, the one legislative, and the other executive. In its legislative character, it can effect no purpose without the cooperation of the house of representatives: and in its executive character, it can accomplish no object, without the concurrence of the president. Thus fettered, I do not know any act which the senate can of itself perform: and such dependence necessarily precludes every idea of influence and superiority. But I will confess, that in the organization of this body, a compromise between contending interests is discernible: and when we reflect how various are the laws, commerce, habits, population, and extent of the confederated states, this evidence of mutual concession and accommodation ought rather to command a generous applause, than to excite jealousy and reproach. For my part, my admiration can only be equalled by my astonishment, in beholding so perfect a system formed from such heterogenous materials.

  The next accusation I shall consider, is that which represents the fœderal constitution as not only calculated, but designedly framed, to reduce the state governments to mere corporations, and eventually to annihilate them. Those who have employed the term corporation, upon this occasion, are not perhaps aware of its extent. In common parlance, indeed, it is generally applied to petty associations for the ease and conveniency of a few individuals; but in its enlarged sense, it will comprehend the government of Pennsylvania, the existing union of the states, and even this projected system is nothing more than a formal act of incorporation. But upon what pretence can it be alleged that it was designed to annihilate the state governments? For, I will undertake to prove that upon their existence depends the existence of the fœderal plan. For this purpose, permit me to call your attention to the manner in which the president, senate, and house of representatives, are proposed to be appointed. The president is to be chosen by electors, nominated in such manner as the legislature of each state may direct; so that if there is no legislature, there can be no senate. The house of representatives is to be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite to electors of the most numerous branch of the state legislature—unless, therefore, there is a state legislature, that qualification cannot be ascertained, and the popular branch of the fœderal constitution must likewise be extinct. From this view, then, it is evidently absurd to suppose, that the annihilation of the separate governments will result from their union; or, that, having that intention, the authors of the new system would have bound their connection with such indissoluble ties. Let me here advert to an arrangement highly advantageous; for you will perceive, without prejudice to the powers of the legislature in the election of senators, the people at large will acquire an additional privilege in returning members to the house of representatives—whereas, by the present confederation, it is the legislature alone that appoints the delegates to congress.

  The power of direct taxation has likewise been treated as an improper delegation to the fœderal government; but when we consider it as the duty of that body to provide for the national safety, to support the dignity of the union, and to discharge the debts contracted upon the collective faith of the states, for their common benefit, it must be acknowledged that those, upon whom such important obligations are imposed, ought, in justice and in policy, to possess every means requisite for a faithful performance of their trust. But why should we be alarmed with visionary evils? I will venture to predict, that the great revenue of the United States must, and always will, be raised by impost; for, being at once less obnoxious, and more productive, the interest of the government will be best promoted by the accommodation of the people. Still, however, the object of direct taxation should be within reach in all cases of emergency; and there is no more reason to apprehend oppression in the mode of collecting a revenue from this resource, than in the form of impost, which, by universal assent, is left to the authority of the fœderal government. In either case, the force of civil constitutions will be adequate to the purpose; and the dread of military violence, which has been assiduously disseminated, must eventually prove the mere effusion of a wild imagination, or a factious spirit. But the salutary consequences that must flow from thus enabling the government to relieve and support the credit of the union, will afford another answer to the objections upon this ground. The state of Pennsylvania, particularly, which has encumbered itself with the assumption of a great proportion of the public debt, will derive considerable relief and advantage; for, as it was the imbecility of the present confederation, which gave rise to the funding law, that law must naturally expire, when a complete and energetic fœderal system shall be substituted—the state will then be discharged from an extraordinary burden, and the national creditor will find it to be to his interest to return to his original security.

  After all, my fellow-citizens, it is neither extraordinary nor unexpected, that the constitution offered to your consideration, should meet with opposition. It is the nature of man to pursue his own interest, in preference to the public good; and I do not mean to make any personal reflection, when I add, that it is the interest of a very numerous, powerful, and respectable body, to counteract and destroy the excellent work produced by the late convention. All the officers of government, and all the appointments for the administration of justice and the collection of the public revenue, which are transferred from the individual to the aggregate sovereignty of the states, will necessarily turn the stream of influence and emolument into a new channel. Every person, therefore, who either enjoys, or expects to enjoy a place of profit under the present establishment, will object to the proposed innovation? not, in truth, because it is injurious to the liberties of his country, but because it effects his schemes of wealth and consequence. I will confess, indeed, that I am not a blind admirer of this plan of government, and that there are some parts of it, which, if my wish had prevailed, would certainly have been altered. But, when I reflect how widely men differ in their opinions, and that every man (and the observation applies likewise to every state) has an equal pretension to assert his own, I am satisfied that any thing nearer to perfection could not have been accomplished. If there are errors, it should be remembered, that the seeds of reformation are sown in the work itself, and the concurrence of two thirds of the congress may at any time introduce alterations and amendments. Regarding it, then, in every point of view, with a candid and disinterested mind, I am bold to assert, that it is the best form of government which has ever been offered to the world.

• Back to Top

  12: Federalist: A Reader’s Guide

  Source: In The Federalist (The Gideon Edition), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001).

  Accessed from oll.libertyfund.org/index.php?option=com_content&task=view&id=827&Itemid=287 on 2008/7/6

• Back to Top

  13: 1789: Madison, Speech Introducing Proposed Amendments to the Constitution

  Source: The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002).

  Accessed from oll.libertyfund.org/index.php?option=com_content&task=view&id=1079&Itemid=264 on 2008/7/6

• Back to Top

  14: 1791: US Bill of Rights (1st 10 Amendments) - with commentary

  Source: James McClellan’s Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

  Accessed from oll.libertyfund.org/index.php?option=com_content&task=view&id=574&Itemid=264 on 2008/7/6

• Back to Top

  15: 1798-1992: US Bill of Rights Amendments (XI-XXVII)

  Source: James McClellan’s Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

  Accessed from oll.libertyfund.org/index.php?option=com_content&task=view&id=576&Itemid=264 on 2008/7/6

• Back to Top

  16: 10: “Equal Protection of the Laws” - Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment [1977]

  Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment, Foreword by Forrest McDonald (2nd ed.) (Indianapolis: Liberty Fund, 1997). Chapter: 10: “Equal Protection of the Laws”

  Accessed from oll.libertyfund.org/title/675/106933 on 2008-08-23

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  10

  “Equal Protection of the Laws”

  It has long been the habit of the Supreme Court to say that the Fourteenth Amendment “speaks in general terms, and those are as comprehensive as possible.” 1 Its opinions are replete with references to the “majestic generalities” of the Fourteenth Amendment,2 to the “vague contours” of the due process clause,3 and the like. Even Judge Learned Hand, though later dubious whether the Amendment authorized the desegregation decision, had said, “history is only a feeble light, for the rubrics were meant to answer future problems unimagined and unimaginable.” 4 And, though Negro suffrage was unmistakably excluded from the Amendment, no less a figure than Justice Holmes held that the equal protection clause self-evidently requires admission of Negroes to a Texas primary: “it seems hard to imagine a more direct and obvious infringement of the Fourteenth. That amendment . . . was passed . . . with a special intent to protect blacks from discrimination against them.” 5 Yet, as we have seen, the framers meant to outlaw discrimination only with respect to enumerated privileges. Even the abolitionists shrank from complete equality. Derrick Bell points out that “few abolitionists were interested in offering blacks the equality they touted so highly. Indeed, the anguish most abolitionists experienced as to whether slaves should be granted social equality as well as political freedom is well documented.” 6

  It is the object of this and the succeeding chapter to show that the framers chose words which aptly expressed, and throughout were wedded to, their limited purposes; that there is virtually no evidence that the framers meant by resort to those words to open goals beyond those specified in the Civil Rights Act and constitutionalized in the Amendment.7 If the terms of the Amendment are “vague,” it is because the Court made them so8 in order to shield the expanding free enterprise system from regulation.

  Analysis will be facilitated by a breakdown into subsidiary questions: What privileges were to be protected? Was the protection to be absolute, that is, to guarantee certain rights to all, or comparative, only to secure freedom from discrimination if those rights were granted? Do the words confer upon Congress a general power to legislate for the States or merely a power to correct State violations? The materials that bear upon these questions are so intermingled that it is not easy to disentangle them for separate discussion. Some repetition is therefore unavoidable, but an effort to isolate the several issues is well worth the cost.

  “Equal protection,” it has been said, “had virtually no antecedent history.” 9 Sumner believed that he may have been “the first to introduce the words ‘equality before the law’ into American jurisprudence.” 10 In truth, the concept that laws should be general, nondiscriminatory in their application, is of long standing. As Locke put it, rulers “are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor.” 11 A note to Blackstone stated generality in more limited terms: “ restraints introduced by the law should be equal to all.” 12 Nor was selection of those entitled to equal protection ruled out, as the very exclusion of black slaves from the society attested. The Massachusetts Constitution of 1780 provided that Christians “demeaning themselves peaceably shall be equally under the protection of law”; and, like the Civil Rights Act of 1866, that Constitution confined protection to “the enjoyment of his life, liberty and property according to standing laws.” 13 As slaves, blacks were chattels, nonpersons singled out for grossly discriminatory treatment and oppression at every step. It would be little exaggerated to say that they were all but unprotected. Declared free by the Thirteenth Amendment, they continued to be treated like slaves,14 so it was essential to insure that the laws which protected whites would also protect blacks from oppression. In the words of Senator James W. Nye of Nevada, the Negroes “have equal rights to protection—equalized protection under equalized laws.” 15 This “equalized protection,” it can not be overemphasized, was limited to the rights enumerated in the Civil Rights Act of 1866, as will now appear.

  What Was Equal Protection to Protect?

  The Civil Rights Act, it will be recalled, secured to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the “ equal benefit of all laws for security of person and property. ” “Political rights” were excluded.16 In describing these aims the framers interchangeably referred to “equality,” “equality before the law,” and “equal protection” (but always in the circumscribed context of the rights enumerated in the Bill), so that it is reasonable to infer that the framers regarded these terms as synonymous. What is required, said Moulton of Illinois, is “that each State shall provide for equality before the law, equal protection to life, liberty, and property, equal right to sue and be sued.” 17 A leading Radical, Samuel Shellabarger of Ohio, said, of the Civil Rights Bill, “whatever rights as to each of these enumerated civil (not political) matters the State may confer upon one race . . . shall be held by all races in equality . . . It secures . . . equality of protection in those enumerated civil rights which the States may deem proper to confer upon any races.” 18 So it was understood by Senator Hendricks, an Indiana Democrat: “To recognize the civil rights of the colored people as equal to the civil rights of the white people, I understand to be as far as Senators desire to go; in the language of the Senator from Massachusetts [Sumner] to place all men upon an equality before the law; and that is proposed in regard to their civil rights.” He objected that “in the State of Indiana we do not recognize the civil equality of the races.” 19 When Andrew Johnson combed the Bill for objections and vetoed it, he noted that §1 “contains an enumeration of the rights to be enjoyed” and that “perfect equality” was sought with respect to “these enumerated rights.” 20 Thomas T. Davis, a New York Republican, expressed a widely shared feeling in stating, Negroes “must be made equal before the law, and be permitted to enjoy life, liberty, and the pursuit of happiness [property],” but he was against “the establishment of perfect equality between the colored and the white race of the South.” 21 While James W. Patterson of New Hampshire was “opposed to any law discriminating against [blacks] in the security and protection of life, liberty, person and property,” “beyond this,” he stated, “I am not prepared to go,” explicitly rejecting “political and social equality.” 22 Windom declared that the Civil Rights Bill conferred an “equal right, nothing more . . . to make and enforce contracts,” and so on, but no “social privileges.” 23 Thus, the concept of “equal protection” had its roots in the Civil Rights Bill and was conceived to be limited to the enumerated rights.

  What reason is there to conclude that when the words “equal protection of the laws” were embodied in the Amendment they were freighted with a new cargo of meaning—unlimited equality across the board? The evidence points the other way. In an early version of the Amendment, provision was made for both “the same political rights and privileges and . . . equal protection in the enjoyment of life, liberty and property,24 an indication that “equal protection” did not include “political rights and privileges,” but was confined to “life, liberty, or property.” Bingham proposed a substitute, H.R. No. 63, that would empower Congress “to secure . . . all privileges and immunities . . . (Art. IV, Sec. 2); and . . . equal protection in the rights of life, liberty and property (5th Amendment).” 25 “Political rights and privileges” had disappeared; in its place was “privileges and immunities.” Neither “privileges and immunities,” nor its antecedent, “civil rights,” had included “political privileges.” 26 Bingham explained that his proposal was aimed at “confiscation statutes . . . statutes of unjust imprisonment” of the “rebel states,” the objects of the Civil Rights Bill. It would enable Congress to insure “that the protection given by the laws of the States shall be equal in respect to life, liberty and property to all persons.” 27 Hale of New York asked him to point to the clause “which contains the doctrine he here announces.” Bingham replied, “The words ‘equal protection’ contain it, and nothing else.” 28

  Among the statements indicating that §1 was considered to embody the objectives of the Civil Rights Act is that of Latham of West Virginia: “The ‘civil rights bill,’ which is now a law . . . covers exactly the same ground as this amendment.” 29 Stevens explained that the Amendment

  allows Congress to correct the unjust legislation of the States so far that the law which operates upon one shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way . . . Whatever law protects the white man shall afford equal protection to the black man. Whatever means of redress is afforded to one shall be afforded to all. Whatever law allows the white man to testify in court shall allow the man of color to do the same. These are great advantages over their present [Black] codes . . . I need not enumerate these partial and oppressive laws . . . Your civil rights bill secures the same thing.30

  As Bickel noted, the “evils to which the proposal was directed” hark “back to those which had been pointed to in support of the Civil Rights Bill.” 31 In attributing to Stevens the view that the Amendment proposed “a congressional guarantee of equality with respect to all state legislation,” 32 Alfred Kelly misconceived Stevens’ position. Very early in the session he had proposed that “ all national and State laws shall be equally applicable to every citizen . . . that is the one I love . . . But it would not be wise to entangle the present proposition with that one. The one might drag down the other.” 33 And when Stevens summed up his views on the Amendment, he said he had hoped that the people “would have so remodeled all our institutions as to have freed them from every vestige of . . . inequality of rights . . . that no distinction would be tolerated . . . This bright dream has vanished . . . we shall be obliged to be content with patching up the worst portions of the ancient edifice.” 34 Those patches went only to discriminatory punishments, deprivation of judicial redress and the like.

  Senator Howard, a far less acute and careful lawyer than Stevens, delivered himself of a looser statement, but even he went on to qualify the general by his enumeration of particulars:

  The last two clauses of the first section of the amendment disable a State from depriving . . . any person . . . of life, liberty or property without due process of law, or from denying to him equal protection of the laws. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of person to a code not applicable to another. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights . . . with the same shield which it throws over the white man . . . Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and different measure is to be meted out to the member of another caste.35

  By “fundamental rights” Howard was employing the familiar shorthand for the incidents of “life, liberty, or property,” repeatedly so identified during the course of the Civil Rights Bill. That by “all legislation” he did not really mean “all” is demonstrated by his statement that §1 “does not . . . give . . . the right of voting”; it is not, he said, “one of the privileges or immunities.” 36 One who confessed that suffrage was not granted can hardly have held out in the same breath that “all class legislation” would now be banned, including some for which even greater distaste had been exhibited—desegregation, miscegenation. Reflecting earlier comments on the Civil Rights Bill, Howard stated in the same context that the Amendment “establishes equality before the law,” that it will prevent States from “trenching upon these rights and privileges,” and will give blacks the “same rights and the same protection before the law” as it gives whites.37 Patently both Stevens and Howard were addressing themselves to the oppressive discriminations perpetuated by the Black Codes.

  Bingham himself contributed a telling bit of evidence against an interpretation of equal protection in unlimited terms. He it was who imported “equal protection” into the Amendment; speaking toward the close of the session in behalf of the admission of Tennessee despite its whites-only suffrage provision, he said: “One great issue has been finally . . . settled . . . [by the Amendment] the equality of all men before the law.” 38 Manifestly an equality that excluded Negro suffrage was not unqualified as he recognized: “We are all for equal and exact justice . . . [but] justice for all is not to be secured in a day.” When Joseph H. Defrees of Indiana, like Stevens, said that §1 of the Amendment “places all persons on an equality . . . so far as equal protection of the laws is concerned,” 39 he distinguished between full-scale equality and “equal protection of the laws.” That distinction was underlined by Samuel Shellabarger, who, speaking to the Civil Rights Bill, confined “equality of protection [to] the enumerated civil rights,” if conferred upon whites. Similar remarks were made by Wilson and Moulton.40 Limited equality was adopted because, as Senator Henderson of Missouri declared early in the session: “A bold declaration of man’s equality cannot be carried.” 41 His prediction was fulfilled by repeated rejection of proposals to require “all laws” to operate “impartially and equally,” to abolish “any distinctions between citizens.” 42

  But, it may be asked, does not the differentiation in §1 between “due process” protection of “life, liberty, and property” and “equal protection of the laws” indicate that “equal protection” was now divorced from the earlier limitation to “life, liberty, and property”? Nothing in the debates indicates such a purpose.42a “Equal protection of the laws” expressed the central object of the framers: to prevent statutory discrimination with respect to the rights enumerated in the Civil Rights Act. That purpose had been loosely expressed in Bingham’s earlier formulation: “equal protection in the rights of life, liberty, and property,” which he mistakenly identified with the “5th Amendment.” Possibly some more perceptive lawyer restored the words “life, liberty, and property” to their Fifth Amendment association with due process, thus insuring access to the courts. At the same time, the established association of due process with judicial procedure made it necessary to block what Stevens denominated “partial and oppressive laws,” a purpose succinctly expressed by “equal protection of the laws” to which reference had been made during the debate on the Civil Rights Bill.

  Freedom From Discrimination vs. Absolute Rights

  The framers sought only to secure to blacks the same specified rights as were enjoyed by whites; if whites did not have them there was no State duty to supply them to anyone, still less a congressional power to fill the gap. So much appears from Shellabarger’s explanation that the Civil Rights Bill secures “equality of protection in these enumerated civil rights which the States may deem proper to confer upon any race.” 43 Before considering further evidence, let us examine tenBroek’s argument to the contrary. His was the most sustained effort to give “equal protection” an “absolute” as distinguished from a nondiscriminatory content. The heart of his argument is:

  the basic notion of this phrase is protection; equality is the condition. The equal protection of the laws cannot be supplied unless the protection of the laws is supplied, and the protection of the laws, at least for men’s natural rights, being the sole purpose for which governments are instituted, must be supplied. The clause is thus understood to mean: “Every State shall supply to all persons . . . the protection of the laws and the protection shall be equal to all.” 44

  Even on the level of verbal analysis the argument is vulnerable. A “condition” is a “restriction or qualification”; it was therefore not “protection unlimited” —the full protection of which laws are capable—that was mandated, but only that such laws as were enacted should be impartial. If the laws supplied no protection, to whites or blacks, there was nothing to which the “equal” condition could attach. To state in this context that “ ‘equal’ protection of the laws and the ‘full’ protection of the laws are virtually synonyms” 45 departs from a decent respect for words—a half-glass given to all is “equal” though it is not “full.”

  TenBroek’s argument is further flawed by the assumption that the “basic idea” of the equal protection clause is that “protection of the laws . . . must be supplied.” That may be well enough as a jural postulate,46 but emphatically it was not the premise of the framers. Translating a remark of Hale as “the citizens must rely upon the State for their protection,” Bingham said, “I admit that such is the rule as it now stands.” 47 Later he explained that in his proposed amendment, “the care of the property, the liberty, and the life of the citizen . . . is in the States, and not in the Federal Government. I have sought to effect no change in that respect.” 48 Because the rule was dear to the framers, Trumbull reassured the Senate that “if the State of Kentucky makes no discrimination in civil rights between its citizens, this bill has no operation whatever in the State of Kentucky.” 49 Protection, if given, must be impartial, but the absence of all protection would afford no ground for federal intervention. It does not advance tenBroek’s argument that, in the remarks of the radical extremists Higby-Kelley-Woodbridge, “the qualifying word ‘equal’ was almost entirely forgotten and ‘protection’ treated as if it stood alone.” 50 Against this unrepresentative fringe there is first the fact that a subcommittee of the Joint Committee had proposed that “Congress shall have power to make all laws . . . to secure all persons . . . full protection in the enjoyment of life, liberty and property.” 51 Here was a proposal—there were others—that embodied precisely what tenBroek argues for, and its demise demonstrates that the framers had no stomach for “full” protection at the hands of Congress. Their objectives were narrower.

  Again and again the framers stated that their purpose was to prevent one law for blacks, another for whites. It was a ban on such discrimination that was expressed in “equality before the law” and “equal protection” —not a mandate that the States must confer rights not theretofore enjoyed by any citizen. In the beginning the Civil Rights Bill had provided:

  There shall be no discrimination in civil rights or immunities . . . but the inhabitants shall have the same right . . . [ “as is enjoyed by white citizens” ] . . . to full and equal benefit of all laws for the security of person and property, and shall be subject to like punishment . . . and none other.52

  The word “immunities” carried over into the Amendment, hence Wilson’s explanation is germane: “It merely secures to citizens of the United States equality in the exemptions of the law. A colored citizen shall not, because he is colored, be subjected to obligations, duties, pains and penalties from which other citizens are exempted . . . One race shall not be favored in this respect more than another . . . This is the spirit and scope of the bill, and it does not go one step beyond.” 53 Although the “no discrimination” clause had been deleted at Bingham’s insistence that the words “civil rights” were too broad and “oppressive,” the provisions for the “same” rights and immunities remained untouched. It was understood by the framers that discrimination remained the target as Shellabarger illustrates; the Bill would require that whatever of these “enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinction based upon race”; such rights “shall be held by all races in equality.” 54

  That persisted as the ground bass of the Amendment; Stevens explained that it required that a State law “shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree.” 55 “Equal protection,” said Senator Howard, “does away with the injustice of subjecting one caste of persons to a code not applicable to another”; the Amendment “establishes equality before the law.” 56 In short, the framers struck at discrimination against the blacks with respect to enumerated privileges and immunities that were accorded to whites; and they chose a word perfectly suited to the purpose. Among the definitions of “equal” are “uniform in effect or operation; neither less nor greater; having the same rights or privileges; impartial.” A State provision may be substandard when measured by more enlightened federal or State criteria; but if it is impartial, uniformly applied to all within the State, it satisfies the meaning of “equal.” 57

  True it is that Bingham and Lawrence of Ohio maintained that the “fundamental,” “natural” rights were “absolute,” and could not be withheld.58 But the Republican majority was content to correct discriminations with respect to those rights. Bingham, on whom tenBroek so often relies, is, we have seen, a confused, imprecise, and vacillating witness.59 Even so, when pressed by Hale whether his proposal “confers upon Congress a general power of legislation” in regard to “protection of life, liberty and property,” he replied that it was designed “to see to it that the protection given by the laws of the State shall be equal in respect to life, liberty and property to all persons.” 60 Faced with opposition, Bingham once more retreated—Congress was only to correct discrimination.61 Nevertheless, tenBroek adopts Bingham’s teetering statement that the States were under an absolute duty to protect those privileges. After remarking on Bingham’s “immortal Bill of Rights,” he loftily dismisses Barron v. Baltimore, wherein Chief Justice Marshall held that the Bill of Rights had no application to the States:

  The “immortal Bill of Rights” not binding on the States! How can one refute an axiom? . . . Chief Justices . . . cannot successfully refute an axiom more than any other mortals . . . [Marshall] could not by any pronouncement of his diminish the obligation of the states to protect men in their natural rights of life, liberty, and property.62

  What tenBroek regards as axiomatic runs counter to statements in the First Congress that the Bill of Rights was to have no application to the States, and in spite of Madison’s urging that freedom of speech and press stood in greater need of protection against the States than against the federal government, to the rejection of his proposal that they be made applicable to the States.63 In 1789 men were more devoted to their States than to the nascent federal government; they feared the centralized, remote power of the newcomer,64 hence the limitations imposed on the federal government by the Bill of Rights. There is no inkling that in the intervening 75 years the North had become dissatisfied with the protection they were given by the States. On the contrary, they reaffirmed their attachment to State sovereignty in the 39th Congress.65 They believed that State governments would be more responsive to their needs, more controllable than the federal regime; and they sought to limit federal intrusions to the minimum necessary to protect the personal security of the blacks.

  The present generation would read back into the Amendment views that the framers clearly perceived the North would not accept. Much closer to the intention of the framers,66 the Supreme Court said in 1875, with respect to the First Amendment protection of the right to assemble against “encroachment by Congress”: “For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.” 67

  Congressional Power: Corrective or General

  Does the §1 provision “nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws” empower Congress to enact laws for direct enforcement thereof? Justice Bradley answered, “How can a prohibition, in the nature of things, be enforced until it is violated?” 68 To convert “No State shall deny” into “Congress shall make” does violence to the text. The distinction between a prohibition of action and a grant of power was well understood by the 39th Congress. Even with respect to the prohibitions directed to Congress by the Bill of Rights, Hale said that the several amendments “do not contain, from beginning to end, a grant of power anywhere. On the contrary, they are all restrictions of power.” 69 In addition, there is the fact that “the equality ordained” is, as Dean Phil Neal put it, “a Statewide equality, encompassing the persons ‘within its jurisdiction’ and not a nationwide or external equality.” 70 For it is the “laws” of the State, not of the nation, that are required to afford “equal protection.”

  Textual analysis is richly confirmed by the legislative history. Shellabarger, an Ohio Radical, argued on behalf of the Civil Rights Bill that “if this section did in fact assume to confer or define or regulate these civil rights which are named . . . then it would . . . be an assumption of the reserved rights of the States . . . Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall . . . be without distinction based on race.” 71 Shellabarger’s assurance to fellow Republicans that State sovereignty was displaced only insofar as corrective measures would require was echoed by his colleagues. Speaking to the final form of the Amendment, Bingham stated: “That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this Amendment. That is the extent it hath; no more.” 72 Stevens said of the same draft that the Amendment “allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.” 73 In the Senate, Howard said that “section one is a restriction upon the States, and does not, of itself, confer any power upon Congress”;74 and that §5 “enables Congress, in case the States shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional amendment.” 75

  Powerful confirmation of such expressions is furnished by the jettisoning of the Bingham amendment (H.R. No. 63), cast in terms of a grant to Congress:

  The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities . . . and to all persons . . . equal protection in the rights of life, liberty, and property.76

  Judge Hale justifiably protested that this “is not a mere provision that when the States undertake to give protection which is unequal Congress may equalize it; it is a grant of power in general terms—a grant of the right to legislate for the protection of life, liberty, and property, simply qualified with the condition that it shall be equal legislation.” 77 Hale’s Republican colleague from New York, Giles W. Hotchkiss, added:

  I desire to secure every privilege and every right to every citizen in the United States that . . . [Bingham] desires to secure. As I understand it, his object . . . is to provide that no State shall discriminate between its citizens and give one class of citizens greater rights than it confers upon another. If this amendment secured that, I should vote for it very cheerfully today . . . I understand the amendment . . . to authorize Congress to establish uniform laws throughout the United States upon the subject named, the protection of life, liberty, and property. I am unwilling that Congress shall have any such power.78

  Stevens staged a rescue attempt in the form of a rhetorical question addressed to Hale: “is it not simply to provide that where any State makes a distinction in the same law between different classes of individuals, Congress shall have power to correct such discrimination and inequality?” 79 But this put too great a strain on the broader Bingham phraseology, and his approach was abandoned.

  That Hale and Hotchkiss voiced the pervasive distrust of a general grant of power to Congress to legislate in the premises may also be gathered from the statement by James F. Wilson of Iowa, chairman of the House Judiciary Committee, that the Bingham proposal was “the embodiment of our greatest danger.” 80 Let Henry J. Raymond, an influential New York Republican who voted for the Fourteenth Amendment, sum up: the Bingham amendment “giving to Congress power to secure an absolute equality of civil rights in every State of the Union . . . encountering considerable opposition . . . it was finally postponed” —and never resuscitated.81 Bingham himself joined ranks when he urged the people, in support of the final draft, to protect “the privileges and immunities of all the citizens of the Republic . . . whenever the same shall be abridged or denied by the unconstitutional acts of any State.” 82

  Flack comments on this shift from “Congress shall have power” to “no State shall make” that, though the former “was not incorporated into the fundamental law . . . it may properly be asked whether it really did not become a part of it with a mere change in dress but not in meaning.” 83 Such flabby analysis that can translate “no” as “yes” has clogged understanding of the Fourteenth Amendment. TenBroek likewise transforms “no State shall make” into the “obligation of the states to ‘make or enforce laws’ protecting” men in their “natural rights.” There “never would have been any historical question about the revolution in federalism worked or confirmed by the Fourteenth Amendment,” he maintained, “were it not for the shift from the positive to what at first glance appears to be a negative form of the amendment.” 84 That “first glance,” as we have seen, is buttressed by the plainly expressed intention of the framers.

  TenBroek attempts to torpedo what he considers the three “mainstays” of the “narrow” construction based on a changeover from grant to prohibition, and begins with Stevens’ explanation of the final draft, in which he said that it “fell far short of [his] wishes.” 85 This, tenBroek argues, referred solely to Negro suffrage, which was not treated in §1 but only in §2 and §3. The argument grasps at straws. Suffrage was a central concern; it had unmistakably been excluded from the Civil Rights Act, the antecedent of §1, so if Stevens was troubled by the failure to provide for suffrage in §2 inferably he considered it also was unprovided for in §1, thus undermining tenBroek’s inference that §1 could “hardly [have been] a source of dissatisfaction to him.” Such speculation is beside the point. Stevens had disclaimed a grant of original power to Congress, first, by seeking to save the Bingham amendment by reading it merely to confer “power to correct such discrimination,” 86 and later by stating that the final draft “allows Congress to correct the unjust legislation of the States.” 87

  The second “mainstay” is that after the shift to the prohibition on States, Andrew J. Rogers, a Democrat and bitter opponent of the several Reconstruction measures, charged that §1 “consolidates everything into one imperial despotism” and “annihilates” States’ Rights. TenBroek reinforces this by the testimony of two other Democrats, Aaron Harding and George S. Shanklin of Kentucky, and asks, “Since the amendment was adopted in the teeth of this criticism, might not we as reasonably conclude . . . that the amendment was intended to do the very thing objected to.” 88 There is no need to recapitulate the weakness of reliance on opposition obstructiveness designed to inflame the electorate. It is a singular approach to legislative history, shared by other proponents of the tenBroek view, to exalt the opposition and all but ignore the statement of objectives by the Republican leadership who carried the day.

  Comes now the third “mainstay”:

  “No State shall . . .” at first looks like a negative on state action; and section 5, granting enforcement power would accordingly authorize Congress to impose only such restraints as would prevent States from taking the forbidden action. Section 5 would thus authorize nothing more than a corrective removal of prohibited state acts . . . Does not this interpretation render section 5 altogether nugatory? . . . [S]ince the judges would in any event strike down acts transcending the prohibitions of the amendment, a law by Congress would serve no purpose.89

  TenBroek proves too much; on his reasoning a court equally could proceed without waiting for a general (as distinguished from a corrective) congressional law.90 The “nugatory” test, therefore, does not clarify whether the congressional power is “corrective” or “general.”

  James A. Garfield’s statement in the 1871 debates, made by a framer in the 39th Congress and faithful to the historical record, is entitled to greater respect than present-day speculation: “soon after the ratification of the Amendment,” tenBroek states, Garfield explained that Congress had rejected “a clear grant of power to Congress to legislate directly for the protection of life, liberty, and property within the States” in favor of the present form that “limited but did not oust the jurisdiction of the state over the subjects.” 91 Justice Bradley’s opinion in the Civil Rights Cases, therefore, does not betray, but rather responds to, the intention of the framers. The Amendment, he declared,

  does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against operation of state laws . . . such [congressional] legislation must, necessarily be predicated upon such state laws or state proceedings, and be directed to the correction of their operation and effect . . . [U]ntil some state law has been passed . . . no [federal] legislation . . . can be called into activity.92

  In sum, the words “equal protection of the laws” were meant to obviate discrimination by laws—that is, statutes—so that with respect to a limited group of privileges the laws would treat a black no differently than a white. If no privilege was accorded to a white, a State was not required to furnish it to anyone. Hence Justice Douglas, in invalidating a State poll tax, was wide of the mark when he based his conclusion, “not on what we think governmental policy should be, but on what the Equal Protection Clause requires.” The truth is, as he stated in a preceding sentence, “we have never been confined to historic notions of equality . . . Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.” 93 In plain words, Douglas laid claim to power to revise the historic meaning in accord with his own preferences. For Chief Justice Marshall, on the other hand, the words of the Constitution were not to be “extended to objects not . . . contemplated by the framers” 94 —let alone unmistakably excluded. As Herbert Packer points out, “the new ‘substantive equal protection’ has under a different label permitted today’s justices to impose their prejudices in much the same manner as the Four Horsemen [of the pre-1937 Court] once did.” 95

  [1.]Strauder v. Virginia, 100 U.S. 303, 310 (1879).

  [2.]Katzenbach v. Morgan, 384 U.S. 641, 649 (1966).

  [3.]Infra Chapter 11 at notes 2–3; Chapter 14 at notes 40–43.

  [4.]The Spirit of Liberty 172–173 (Irving Dillard ed. 1952). Yet he could say of the Court’s resumption of the “role of a third legislative chamber” in the context of the “desegregation” case, “I have never been able to understand on what basis it does or can rest except as a coup de main.” Hand, The Bill of Rights 55 (1962).

  [5.]Nixon v. Herndon, 273 U.S. 536, 541 (1927). Justice Matthews had earlier cited “the political franchise of voting” as a “self-evident” illustration of “fundamental rights” “because preservative of all rights,” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), a position that had been pressed by Sumner and others but had been rejected. Supra Chapter 4 at notes 12–14 et seq.
  
  In the same opinion wherein Justice Frankfurter finds it impossible to swallow reapportionment, he states that “the controlling command of Supreme Law is plain and unequivocal” on the issue of Negro disfranchisement: “An end of discrimination against the Negro was the compelling motive of the Civil War Amendments. The Fifteenth expresses this in terms, and it is no less true of the Equal Protection Clause of the Fourteenth.” Baker v. Carr, 369 U.S. 186, 285–286 (1962), citing Nixon v. Herndon, dissenting opinion. The invocation to Holmes cannot overcome the fact that the Fourteenth Amendment designedly withheld suffrage.
  
  Holmes himself construed a statute “not to include a case that indisputably was within its literal meaning, but was believed not to be within the aim of Congress.” American Security Co. v. District of Columbia, 224 U.S. 491, 495 (1912). There he inferred that “Congress meant no such result”; here we have proof positive that the framers meant to exclude suffrage.

  [6.]Derrick A. Bell, Jr., “Book Review,” 76 Colum. L. Rev. 350, 358 (1976). See Chapter 1 at notes 38, 39, 53.

  [7.]See supra Chapter 5.

  [8.]See infra Chapter 14 at notes 40–43.

  [9.]Kelly, Fourteenth 1052.

  [10.]Donald, Sumner II 149.

  [11.]Quoted in R. J. Harris, The Quest for Equality 10 (1960).

  [12.]1 William Blackstone, Commentaries on the Laws of England 127n. The Blackstone note was called to the attention of the 39th Congress by Senator Trumbull. Globe 474.

  [13.]Articles III and X; 1 Poore 957–958.

  [14.]Supra Chapter 2 at notes 18–24; Conkling, Globe 356; Kenneth M. Stampp, The Peculiar Institution 124, 192–236 (1956).

  [15.]Globe 1073, 1074.

  [16.]Supra Chapter 2 at note 26 et seq. In 1797 Judge Samuel Chase had decided that the privileges and immunities clause of Article IV required a State to accord an out-of-state citizen the “same” protection for property and “personal rights” and the “same” exemptions from taxes and burdens it afforded to its own citizens. Campbell v. Morris, 3 H. & McH. 535, 554 (Md.).

  [17.]Globe 1622.

  [18.]Id. 1293 (emphasis added). Wilson called for a stop to “inhuman” discriminations and for “equality in the exemptions of the law.” Globe 1118.

  [19.]Id. 601–602.

  [20.]Id. 1679–1680. Bickel concluded that the Moderate leadership—Trumbull and Fessenden—had in mind a “limited and well-defined meaning . . . a right to equal protection in the literal sense of benefitting equally from the laws for the security of person and property.” Bickel 56.

  [21.]Id. 1085.

  [22.]Id. 2699.

  [23.]Id. 1159. See also John Thomas, supra Chapter 7 at note 33.

  [24.]Bickel 31.

  [25.]Id. 33; Kendrick 61.

  [26.]Supra Chapter 2 at notes 26–40.

  [27.]Globe 1091, 1094 (emphasis added).

  [28.]Id. 1094 (emphasis added). This interchange with Hale about a provision described by Bingham as “equal in respect to life, liberty, and property” (emphasis added), is rendered by Kelly thus: “In other words, the amendment was to impose a very general requirement of equality on all state legislation of the most inclusive kind”! Kelly, Fourteenth 1074. “Life, liberty, and property,” we have seen, had a limited connotation for the framers.

  [29.]Globe 2883; see also supra Chapter 1 at notes 10–13; Chapter 8 at notes 68–70.

  [30.]Globe 2459 (emphasis added). Van Alstyne comments on this passage, “Surely the right to vote is one essential protection that white men enjoyed and surely equal protection would require that black men enjoy it to the same extent.” Van Alstyne 56. He substitutes twentieth-century logic for the intention of the framers, including Stevens, to exclude suffrage from both the Civil Rights Bill and the Fourteenth Amendment. See infra Appendix A at notes 21–33.

  [31.]Bickel 47. Referring to an earlier Stevens interpellation in a Hale-Bingham colloquy, Kelly states that Stevens “made it clear” he proposed to go “far beyond the scope of the Civil Rights Bill.” Kelly, Fourteenth 1073. That concerned a Bingham proposal that “Congress shall have power to make all laws . . . to secure equal protection in the rights of life, liberty, and property.” Hale objected, and Stevens asked whether he meant Congress “could interfere in any case where the legislation of a State was equal, impartial to all? Or is it not simply to provide that, where any State makes a distinction in the same law between different classes of individuals Congress shall have power to correct such inequality.” Globe 1063. The proposal really embodied the former alternative (see infra at notes 76–81 for discussion), and it had to be abandoned. For present purposes, the important thing is that equal protection was limited to “life, liberty, and property,” and as the later Stevens statement, quoted supra at note 30, shows, he did not go beyond the rights enumerated in the Civil Rights Act.

  [32.]Kelly, Fourteenth 1073. Apparently Kelly changed his views. In a 1965 article he stated that “so far as I know, there is no instance of any discussion on the floor of either House in terms of anything other than a proposal to guarantee against certain forms of discriminatory state action.” Kelly, “Clio and the Court: An Illicit Love Affair,” 1965 S. Ct. Rev. 119, 147 (emphasis added).

  [33.]Globe 537.

  [34.]Id. 3148 (emphasis added).

  [35.]Id. 2766 (emphasis added).

  [36.]Id.

  [37.]Id. To read Howard’s “all legislation” literally is also to ignore the proposals to that effect that perished. Supra Chapter 9 at notes 28–35. These facts refute Kelly’s statement that Howard “presented in no uncertain terms a powerful and convincing ‘broad construction’ of the force and scope of the first section,” an “extremely latitudinarian interpretation of the due process clause, which he asserted would destroy all class legislation entirely.” Kelly, Fourteenth 1081; cf. supra note 32.

  [38.]Globe 3979.

  [39.]Globe App. 227 (emphasis added).

  [40.]Supra Chapter 2 at note 26; supra at notes 17–18, 21–23.

  [41.]Globe App. 119. See Senator Fessenden, supra Chapter 6, Epigraph. “One is driven by the evidence,” Woodward states, to conclude that “popular convictions were not prepared to sustain” a “guarantee of equality.” The Burden of Southern History 83 (1960); see also Chapter 1 at notes 38–39, 52–53.

  [42.]Supra Chapter 9 at notes 28–35.

  [42a.]Evidence to the contrary is furnished by Farnsworth, infra Chapter 11 at note 98.

  [43.]Supra at note 18.

  [44.]TenBroek 222.

  [45.]Id. 193.

  [46.]That is likewise Harris’ view, supra note 11 at 22, 42.

  [47.]Globe 1093. Hale had stated that the “American people have not yet found their State governments are insufficient to protect the rights and liberties of the citizen.” Id. 1064–1065. After concurring, Bingham quoted Federalist No. 45: “The power reserved to the Federal States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people.” Globe 1093.
  
  Shellabarger referred to the “rights which the States may deem proper to confer upon any races,” supra at note 18. And Senator Fessenden stated, “The power exists now at the present time in all these States to make just such class or caste distinctions as they please. The Constitution does not limit them.” Id. 704.

  [48.]Id. 1292.

  [49.]Id. 600. After the Johnson veto of the Civil Rights Bill, Trumbull reiterated that the Bill “in no manner interferes with the municipal regulations of any State which protects all alike in their rights of person or property.” Id. 1761.
  
  Contrast this with tenBroek’s deduction from Trumbull’s statement, “I take it that any statute which is not equal to all, and which deprives any citizen of civil rights which are secured to other citizens, is an unjust encroachment” (emphasis added). TenBroek asks, “ ‘secured’ how? By the only method by which rights can be secured, namely, by supplying protection . . . Hence, deprivation or denial of laws ‘not equal to all’ will occur just as much by failure to supply the protection . . . as by the Black Codes imposing special burdens on a selected class”! TenBroek 188.

  [50.]TenBroek 211. But Woodbridge understood the purpose was to strike at discrimination. Infra note 55. Higby is a poor witness for “absolute” protection, for his “extremely anti-Chinese” views led him to maintain that “the Chinese were ‘a pagan race’ of no virtue and incapable of citizenship,” Harris, supra note 11 at 40, and therefore not entitled to equal protection.

  [51.]January 27, 1866, TenBroek 205 (emphasis added).

  [52.]Globe 474, 1366.

  [53.]Id. 1117 (emphasis added). The word “immunity,” said Bingham, means “exemption from unequal burdens.” Id. 1089.

  [54.]Id. 1293; see supra at note 18.

  [55.]Globe 2459, more fully quoted supra at note 30. Woodbridge read the Bingham prototype amendment to give “to every citizen . . . that protection to his property which is extended to the other citizens of the State.” Id. 1088.

  [56.]Id. 2766.

  [57.]In the 1871 debates on the Ku Klux Klan Act, James Garfield, destined before long to become President, “reviewed fully the legislative history of the first section,” and stated that “It is not required the laws shall be perfect. They may be unwise, injudicious, even unjust; but they must be equal in their provisions . . . resting upon all with equal weight.” Cong. Globe, 42d Cong., 1st Sess. App. 153, April 4, 1871.

  [58.]Globe 1089–1090, 1832.

  [59.]Supra Chapter 8 at notes 43–56.

  [60.]Globe 1094 (emphasis added).

  [61.]“By the Fourteenth Amendment’s terms the legal processes (procedures) due equally as protection and remedy to each national citizen were the laws and procedures of a citizen’s State. Instead of formulating positively national civil-rights minima, as some Republican Radicals preferred to do, the amendment forbade unequal deprivation of the broad, uncodified mass of civil rights protections which a state professed to afford equally to the generality of its citizens.” Harold M. Hyman, A More Perfect Union 467–468 (1973).
  
  In 1872 Justice Miller stated, “We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class . . . will ever be held to come within the purview of this [equal protection] provision.” Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81. In 1884, Justice Field stated that the Fourteenth Amendment “only inhibits discriminating and partial enactments, favoring some to the impairment of the rights of others,” and does not transfer “to the federal government the protection of all private rights . . .” Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746, 759, concurring opinion.

  [62.]TenBroek 214–215; Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).

  [63.]Supra Chapter 8 note 4.

  [64.]Raoul Berger, Congress v. The Supreme Court 260–263 (1969).

  [65.]E.g., Hale, supra note 47; Chapter 4 at notes 51–52.

  [66.]As long ago as 1454, stated Chief Justice Prisot, “the judges who gave these decisions in ancient times were nearer to the making of the statute than we now are, and had more acquaintance with it.” Windham v. Felbridge, Y.B. 33 Hen. 4, f.38, 41, pl. 17, quoted in C. K. Allen, Law in the Making 193 (6th ed. 1958). For early American statements to the same effect, see Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 290 (1827). Such cases antedate modern access to legislative history, and I would not suggest that such judges can displace the clearly revealed intention of the framers as disclosed by that history, but would point out that their confirmation of that history lends it added weight.

  [67.]United States v. Cruikshank, 92 U.S. 542, 552 (1875). That plainly appears in the history of the Bill of Rights, supra Chapter 8 note 4. Chief Justice Parker declared in Abbott v. Bayley, 6 Pick. 89, 93 (Mass. 1827) that “protection of the persons of those who live under this jurisdiction” was left by the Constitution in the States. See also supra Chapter 8 at notes 86–87.

  [68.]United States v. Cruikshank, 25 F. Cas. (No. 14, 897) 707, 714 (C.C.D. La. 1874).

  [69.]Globe 1064. Michael C. Kerr of Indiana also rejected the argument that the first ten amendments “are grants of power to Congress . . . Hitherto these amendments have been supposed . . . to contain only limitations on the powers of Congress.” Id. 1270.

  [70.]Phil C. Neal, “Baker v. Carr: Politics in Search of Law,” 1962 S. Ct. Rev. 252, 293. In Missouri v. Lewis, 101 U.S. 22, 31 (1879), the Court held, “The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line . . . Each State prescribes its own modes of judicial proceeding.”

  [71.]Globe 1293.

  [72.]Id. 2543; see also supra at note 48. Earlier Bingham stated, “The adoption of the proposed amendment will take from the States no rights that belong to the States . . . but in the event they . . . enact laws refusing equal protection to life, liberty or property” Congress can act. Globe 1090.

  [73.]Globe 2459; see also Trumbull supra at note 49.

  [74.]Globe 2766.

  [75.]Id. 2768. Howard also stated, “The great object of the first section of this amendment is, therefore, to restrain the power of the States and to compel them to respect these great fundamental guarantees.” Section 5, he continued, constitutes “a direct affirmative delegation of power to Congress to carry out all the principles of these guarantees,” i.e., to enforce the “negative” terms of §1. Id. 2766 (emphasis added).
  
  TenBroek would make Howard the exponent of as “ ‘direct’ and ‘affirmative’ a delegation of power to Congress as could be made” rather than a mere “power to correct state legislation.” He argues that if § §1 and 5, in Howard’s words “ ‘establish equality before the law’ and ‘give to the humblest . . . the same protection before the law as . . . to the most powerful’ . . . then certainly the power of Congress may be exercised whenever there is not equality before the law.” TenBroek 230 (emphasis added). Here Howard was speaking of the substantive grant, the “discrimination” that would trigger congressional action, not of the time and corrective nature of that action, about which Howard spoke plainly enough, supra, and which statements tenBroek, 230, overlooked.

  [76.]Globe 813, 1034; Bickel 33.

  [77.]Globe 1063–1064. When tenBroek, 216, stated that “Bingham and Hale thus completely agree that the equal protection clause was ‘a grant of the right to legislate for the protection of life, liberty, and property simply qualified with the condition that it shall be equal legislation,’ ” he was quoting Hale’s criticism of the “positive” grant to Congress of the Bingham amendment, which did not survive. See infra at note 81.

  [78.]Globe 1095. Another New York Republican, Davis, who represented “a radical constituency,” also opposed the Bingham proposal as an “infringement on the reserved rights of the States” that would “centralize power in the Federal Government,” though he was pledged to measures “essential to the protection of their [blacks’ ] just right.” Id. 1086, 1083, 1085. But he rejected the proposal as a “grant of original legislation by Congress.” Id. 1087.

  [79.]Id. 1063.

  [80.]TenBroek 217, notes that when the “Congress shall have formula” was reported out by the Joint Committee, “it was recommitted by a vote of 110 to 37, after a debate in which not only Democrats but also conservative Republicans sharply criticized it as effecting a radical redistribution of powers of the states and the national government.”

  [81.]Globe 2502.

  [82.]Id. 2542 (emphasis added).

  [83.]Flack 64. Yet he notes that “The Radical leaders were as aware as any one of the attachment of a great majority of the people to the doctrine of State Rights . . . the right of the States to regulate their own internal affairs.” Id. 68.

  [84.]TenBroek 223, 216.

  [85.]Id. 217–218.

  [86.]Supra at note 79. TenBroek, 212 note 8, rightly stated that Stevens’ rhetorical question to this effect represented his own view: “The latter half of the sentence shows . . . that Stevens has a mind fixed primarily on the narrower interpretation of equal protection,” i.e., the “corrective” role of Congress.

  [87.]Supra at note 73.

  [88.]TenBroek 218–219.

  [89.]Id. 220–221.

  [90.]For discussion of the §5 enforcement power, see infra Chapter 12.

  [91.]TenBroek 216–217. See Hyman, supra note 61. Benedict likewise concludes that the Fourteenth Amendment “in no way challenged the tradition that the states had primary jurisdiction over citizens in matters of police regulation . . . Instead, its first and fifth sections gave Congress power to assure that the police regulations would not discriminate against citizens on account of race . . . where the regulation involved some ‘fundamental right’ of United States citizens . . . it did not transfer to the national government the power to frame all laws touching on these rights. National jurisdiction could arise only through the states prior wrongdoing.” M. L. Benedict, A Compromise of Principle 170 (1975).

  [92.]Civil Rights Cases, 109 U.S. 3, 11, 13 (1883); see also id. 19. Ten years earlier Justice Bradley had stated on circuit that “there can be no constitutional legislation of congress for directly enforcing the privileges and immunities . . . where the State has passed no laws adverse to them . . .” United States v. Cruikshank, 25 F. Cas. at 714.

  [93.]Harper v. Virginia Board of Elections, 383 U.S. 663, 670, 669 (1966), but cf. Hamilton, infra Chapter 17 at note 15.

  [94.]Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827), dissenting opinion. In Church of the Holy Trinity v. United States, 143 U.S. 457, 472 (1891), the Court held that though a rector “is within the letter [he] is not within the intention of the legislature, and therefore cannot be within the statute.” For a similar holding by Justice Holmes, see supra note 5; see also Robert Bork, infra Chapter 11 at note 80; and see infra Chapter 20.

  [95.]“The Aim of the Criminal Law Revisited: A Plea for a New Look at ‘Substantive Due Process,’ ” 44 S. Cal. L. Rev. 490, 491–492 (1971). Commenting on Brown v. Board of Education, Professor Lusky stated, “Plainly the Court was using the term ‘unequal’ in a new sense. The ‘inequality’ prohibited by the Constitution was no longer thought limited to unequal distribution of governmental burdens and benefits, but was held to include measures perpetuating the social isolation of minority groups,” Lusky 214, a subject excluded from the Fourteenth Amendment by its framers.

• Back to Top

  17: 4: Negro Suffrage Was Excluded - Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment [1977]

  Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment, Foreword by Forrest McDonald (2nd ed.) (Indianapolis: Liberty Fund, 1997). Chapter: 4: Negro Suffrage Was Excluded

  Accessed from oll.libertyfund.org/title/675/106906 on 2008-08-23

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  4

  Negro Suffrage Was Excluded

  No area of Negro rights considered by the 39th Congress was so extensively discussed as Negro suffrage.1 The issue was crucial to the maintenance of Republican ascendancy, a goal boldly proclaimed by Stevens at the very outset. Such ascendancy, the mass of Republicans believed, was to be assured through the reduction of Southern representation in the House of Representatives in proportion as a State denied or abridged suffrage, the device embodied in §2 of the Amendment.2 Some strongly doubted whether the rebel ruling class, outnumbered by blacks, could be induced to “divest itself of the government and hand it over to a subject and despised caste.” 3 But it was more important, Senator George H. Williams of Oregon, member of the Joint Committee, candidly avowed, to limit Southern representation than to provide “that negroes anywhere should immediately vote.” 4 The fact that Negro suffrage was unmistakably excluded from the ambit of the Civil Rights Bill, which proceeded on a parallel track with debate on “representation,” lends substance to his avowal. The intention to exclude suffrage from the Amendment as well5 need not rest entirely on its incorporation of the Civil Rights Act, for there is ample affirmative evidence of that purpose.

  Chief Justice Warren held in Reynolds v. Sims, a State reapportionment case, that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” The premise, he said, that a State may not deny suffrage was derived from a “conception of political equality . . . [that] can mean only one thing—one person, one vote.” 6 Equality, however, did not carry that meaning for the framers;7 and in a powerful dissent, Justice Harlan reproached the Court “for its failure to address itself at all to the Fourteenth Amendment as a whole or to [its] legislative history.” 8 Even one who regards the reapportionment decisions with favor, Carl Auerbach, lamented that “the failure of the Court to mention, let alone deal with, [Harlan’s] argument is indeed, as he charged, remarkable and confounding.” 9 Another proponent of those decisions, William Van Alstyne, states that “the majority seems tacitly to have conceded the argument.” 10 In 1970 Justice Harlan amplified his dissent in Oregon v. Mitchell;11 both of his dissents are models of scholarly exactitude. Having combed the debates for myself, I can confirm his accuracy and scrupulousness in drawing inferences from the facts; one can only complain that he left so few gleanings for those who came after. Since his discussion in the two opinions covers many pages, and since it is contained in law reports that only scholarly specialists are likely to consult, I have undertaken to compress the materials into smaller compass, particularly because they furnish the springboard for much that is to follow.

  The Grant of Suffrage Was Excluded From §1

  Senator Sumner labeled the right to vote “the Great Guarantee; and the only sufficient Guarantee,” 12 without which, said Senator Samuel C. Pomeroy of Kansas, the Negro “has no security.” 13 Similar sentiments were expressed by James A. Garfield and James M. Ashley of Ohio, George S. Boutwell of Massachusetts, Ignatius Donnelly of Minnesota, and William A. Newell of New Jersey—Republicans all.14 Nevertheless, as Senator Trumbull emphasized, it was not included in the Civil Rights Bill. Why not? Because, in the words of David Donald, it was “political dynamite.” 15 The reasons have been so admirably compressed by Professor Van Alstyne as to bear quotation in extenso. He notes that the Joint Committee considered a forthright proposal to abolish “any distinctions in political or civil rights . . . on account of race” and states,

  The decision was made, however, not to propose a limited, single purpose amendment; not to advertise the particular issue of Negro suffrage and to dispose of it through a provision instantly invalidating the laws of all states where equal suffrage regardless of race was denied. The reluctance of the Republicans bluntly to dispose of the issue in this fashion is readily explainable; there was not sufficient prospect that the necessary number of votes would ratify such an amendment.

  There were, in 1866, but five states in the nation that permitted Negroes to vote on equal terms with whites: Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Together, these states contained a mere 6 per cent of the Negro population. New York also permitted Negro suffrage, but only for those possessed of at least a $250 freehold estate, an added “qualification” that whites were not obliged to satisfy. No other state permitted Negroes to vote, regardless of qualification. Moreover, in late 1865, shortly before the Thirty-ninth Congress convened, Connecticut, Minnesota, and Wisconsin voted down impartial suffrage by popular referendum. The Territory of Colorado defeated a referendum for impartial suffrage by a wide margin in September, 1865, and was, nevertheless, admitted to the Union by Congress.

  The admission of Colorado, with its ban on Negro voting, followed the admission of Nevada, which had a similar ban, and was in turn followed by the readmission of Tennessee on July 24, 1866. The readmission of Tennessee [ after submission of the Fourteenth Amendment with its equal protection clause for ratification] was accomplished, moreover, with complete awareness that its general assembly had, on June 5, 1865, restricted the franchise to white males only. Indeed, all these facts were well known to the Congress, and were gleefully recited by some of the Democrats who challenged the Republicans to dare make an issue of Negro suffrage.

  All these things and more had a conspicuous and significant influence on the Thirty-Ninth Congress.16

  Indeed they had! They explain why the framers rejected Negro suffrage, as may immediately be gathered from two statements among many. Senator Pomeroy stated: “This nation . . . has not yet reached the point of giving all men their rights by a suffrage amendment; three-fourths of the States are not ready.” 17 In opening the debate on the Amendment, Senator Jacob Howard stated on behalf of the Joint Committee, “it was our opinion that three-fourths of the States . . . could not be induced to grant the right of suffrage, even in any degree or under any restriction, to the colored race.” 18 These views were repeated in the Final Report of the Joint Committee on Reconstruction.19

  If Negro suffrage was unacceptable to the great mass of Republicans, how can we read into the general terms “equal protection” the very grant they could not swallow? Van Alstyne also notes a number of proposals that would expressly abolish distinctions “in the exercise of the legislative franchise on account of race or color” (including one by Sumner that was rejected by a vote of 38 to 8),20 and explains that “there was not sufficient prospect that the necessary number of States would ratify such an amendment.” Are we to impute to the framers an intention to shroud in ambiguity the Negro suffrage they dared not “advertise” by a “blunt,” unequivocal proposal? Something of the sort is suggested by Van Alstyne,21 but there is no evidence of representations that the Fourteenth would mean one thing in 1866 and the very thing then “feared” in the future. A legislative intention to have words mean one thing in 1866 and the opposite in the future is so remarkable as to call for strict proof, not speculation, particularly when disclosure spelled political disaster.22 But let me defer comment on this “open-ended” theory, fathered by Alexander Bickel, embraced by Alfred Kelly and Van Alstyne, and then picked up by Justice Brennan, to a later chapter, and for the moment permit the framers to speak for themselves. Because the suffrage issue is so vital for my subsequent discussion of the scope of judicial review, because in the eyes of Justice Brennan the historical record is “vague and imprecise,” 23 it is essential by copious documentation to establish firmly the deliberate exclusion of Negro suffrage.

  Negro Suffrage Was Unacceptable

  With but “6% of the Negro population,” New England’s advocacy of Negro suffrage, Senator Edgar Cowan of Pennsylvania acidly lectured Sumner, came cheap: “he simply had no understanding of what it is to live in a community surcharged with an idle, dissolute, vicious, ignorant negro population just emerged from slavery.” 24 At the other end of the political spectrum, the Radical leader Thaddeus Stevens, also of Pennsylvania, wrote, “In my county are fifteen hundred escaped slaves. If they are specimens of the negroes of the South, they are not qualified to vote.” 25 Stevens told Robert Dale Owen, “We haven’t a majority, either in our committee or in Congress, for immediate suffrage; and I don’t believe the States have yet advanced so far that they would ratify it.” 26 William Lloyd Garrison, the indomitable abolitionist, “came out against the forcing of Negro suffrage upon the South.” 27

  The Republicans were keenly alive to the situation. Very early in the session, Roscoe Conkling explained,

  The northern states, most of them, do not permit negroes to vote. Some of them have repeatedly and lately pronounced against it. Therefore, even if it were defensible as a principle for the Central Government to absorb by amendment the power to control the action of the States in such a matter, would it not be futile to ask three-quarters of the States to do for themselves and others, by ratifying such an amendment, the very thing most of them have already refused to do in their own cases?28

  Senator Fessenden, chairman of the Joint Committee, said of a suffrage proposal, there is not “the slightest probability that it will be adopted by the States . . . [it] would not commend itself to anybody.” 29 Sumner’s own Massachusetts colleague, Senator Henry Wilson, a leading Radical, commented on Senator Henderson’s proposal of suffrage without distinction of race, “I cannot think . . . there is any hope of adoption after the indications of the last six months.” 30 Another Senator who favored Negro suffrage, Doolittle of Wisconsin, said, “out of New England there are not three States in this Union, neither Nevada nor Colorado, nor any of the new States or the old States that will vote for an amendment . . . by which negro suffrage shall be imposed upon the States.” 31 Similar remarks were made by still others.32 On July 21, 1866, shortly after the Amendment passed the Congress, Sumner proposed an amendment to a bill for admission of Tennessee that “there shall be no denial of the electoral franchise, or of any other rights, on account of color or race, but all persons shall be equal before the law.” It was voted down without debate, 34 to 4.33 This background lends meaning to Senator Howard’s assurance that “the first section of the proposed amendment does not give . . . the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured” 34 —an echo of assurances during debate on the Civil Rights Bill. Bingham likewise stated that “The amendment does not give . . . the power to Congress of regulating suffrage in the several States.” 35 In any event, how can we attribute to the ratifiers approval of Negro suffrage when midway in the course of ratification, in the elections of April 1867, Bingham’s own State, Ohio, “overwhelmed a negro suffrage amendment by 40,000? In every state where the voters expressed themselves on the Negro suffrage issue they turned it down.” 36

  attachment to state sovereignty

  Notwithstanding that the States’ Right doctrine had been badly tarnished by its association with secession, a potent factor in the exclusion of Negro suffrage was a deep-seated attachment to State sovereignty. That this was no mere rationalization for Negrophobia may be gathered from the objection of Senator James W. Grimes of Iowa to a national livestock quarantine measure: “Let us go back to the original condition of things, and allow the States to take care of themselves.” 37 On the eve of the Civil War, Lincoln stated in his First Inaugural Address, “The right of each State to order and control its own domestic institutions according to its own judgment exclusively is essential to the balance of powers on which the perfection and endurance of our political fabric depends.” 38 So Story had earlier stated,39 and this view was reiterated by Republicans like Thomas T. Davis, Robert S. Hale, and Giles W. Hotchkiss of New York40 and Latham of West Virginia. Congress, Latham said, “has no right to interfere with the internal policy of the several states.” 41 “The proposition to prohibit States from denying civil or political rights to any class of persons,” said Conkling, “encounters a great objection on the threshold. It trenches upon the principle of existing local sovereignty . . . It takes away a right which has been always supposed to inhere in the States.” 42 Bingham, a leader in the Negro cause, stated that “the care of the property, the liberty, and the life of the citizen . . . is in the States and not in the federal government. I have sought to effect no change in that respect.” 43 It was because of the prevalence of such sentiment that Trumbull, defending the Civil Rights Bill after President Johnson’s veto, felt constrained to reassure the Senate that the Bill “in no manner interferes with the municipal regulations of any State which protects all alike in their rights of person and property.” 44

  This sentiment emerges even more sharply when suffrage is in issue, as when Conkling stated that interference therewith “meddles with a right reserved to the States . . . and to which they will long cling before they surrender it.” 45 Early in the session, the Radical leader Stevens said of a proposed amendment to reduce State representation in proportion to a denial of Negro suffrage: “I hold that the States have the right . . . to fix the elective franchise within their own States. And I hold that this does not take it from them . . . How many States would allow Congress to come within their jurisdiction to fix the qualification of their voters? . . . You could not get five in this Union.” 46 In the Senate, Chairman Fessenden stated, “everybody has admitted from the foundation of the Government down to the present day that the power to fix the qualifications of voters rested with the States,” and that the proposed “representation” provision “leaves it just as it was before, and does not change it.” 47 After stating his preference for Negro suffrage, Senator Doolittle said that “the Federal Government had no right or constitutional power to impose on a State negro suffrage . . . the right of a State to determine that question was one of the reserved rights of every State.” Like Stevens, he averred that “out of New England” no three States would vote for an amendment “by which negro suffrage shall be imposed upon the States.” 48 Although Senator Henderson of Missouri was an advocate of Negro enfranchisement, he too stated that he was “not now ready to take away from the States the long-enjoyed right of prescribing the qualifications of electors in their own limits.” 49 “The Radical leaders,” Flack stated, “were aware as any one of the attachment of a great majority of the people to the doctrine of States rights . . . the right of the States to regulate their own internal affairs.” 50 These sentiments were accurately summarized by Justice Miller in 1872, shortly after adoption of the Fourteenth and Fifteenth Amendments:

  we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the states with power for domestic and local government . . . was essential to the working of our complex form of government.51

  This “commitment to traditional state-federal relations meant,” in the words of Alfred Kelly, that “the radical Negro reform program could be only a very limited one.” 52 That it was in fact a program “limited” to a ban on discrimination with respect to “fundamental rights” from which suffrage was excluded is confirmed by §2.

  The Effect of §2

  The framers’ intention to leave control of suffrage in the States, untouched by §1, is confirmed by §2 of the Amendment. That section provides,

  Representation shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State. But when the right to vote at any election . . . is denied . . . or in any way abridged . . . the basis of representation therein shall be reduced.53

  The denial is not prohibited, it is not declared void, but as Eckley of Ohio put it, if a State “persists in withholding the ballot” from blacks, she will be “confine[d] . . . to the white basis of representation.” 54 It is difficult to dispute Justice Harlan’s conclusion that §2 “expressly recognizes the State’s power to deny ‘or in any way’ abridge the right . . . to vote.” 55 Were this doubtful, doubts are dispelled by the “blinding light” of the legislative history.56 Since that is disputed by Van Alstyne and Justice Brennan, the evidence must be permitted to speak for itself, unfiltered by a commentator’s paraphrase.

  Bingham, a leading Republican member of the Joint Committee, the pillar of the neoabolitionists, said, “we all agree . . . that the exercise of the elective franchise . . . is exclusively under the control of the States . . . The amendment does not give, as the second section shows, the power of regulating suffrage in the several States.” 57 Instead, as he said of a predecessor proviso, it “offers an inducement to those States . . . to make the franchise universal.” 58 On the Senate side, Chairman Fessenden said of an earlier provision, H.R. No. 51, couched in terms of racial discrimination respecting suffrage, “It takes the Constitution just as it finds it, with the power in the States to fix the qualifications of suffrage precisely as they see fit . . . If in the exercise of the power you [States] have under the Constitution you make an inequality of rights, then you are to suffer such and such consequences.” 59 When illness prevented Fessenden from explaining §2, Senator Howard stated: “The second section leaves the right to regulate the elective franchise with the States, and does not meddle with that right.” Later he added: “We know very well that the States retain the power which they have always possessed of regulating the right of suffrage . . . the theory of this whole amendment is to leave the power of regulating the suffrage with . . . the States.” 60 Senator Yates of Illinois recognized that “we do not obtain suffrage now”; Senator Doolittle of Wisconsin stated, the “amendment proposes to allow the States to say who shall vote”; Senator Poland of Vermont would have preferred that “the right of suffrage had been given at once,” but realized it was not “practicable”; Senator Howe of Wisconsin likewise preferred to say “no man shall be excluded from the right to vote” to saying “hereafter some men may be excluded from the right of representation.” 61

  In the House, Blaine of Maine stated, “The effect contemplated . . . is perfectly well understood, and on all hands frankly avowed. It is to deprive the lately rebellious States of the unfair advantage of a large representation in this House, based on their colored population, so long as that people shall be denied political rights. Give them the vote or lose representation.” 62 Conkling stated that the Joint Committee rejected proposals “to deprive the States of the power to disqualify or discriminate politically on account of race or color” and preferred “to leave every State perfectly free to decide for itself . . . who shall vote . . . and thus to say who shall enter into its basis of representation.” “ [E]very State,” he reiterated, “will be left free to extend or withhold the elective franchise on such terms as it pleases, and this without losing anything in representation if the terms are impartial to all.” And he summed up, “every State has the sole control, free from all interference, of its own interests and concerns,” spelling out that if New York chose to withhold suffrage, “her right cannot be challenged.” 63 Stevens, co-chairman of the Joint Committee, stated that the right of a State to disfranchise “has always existed under the Constitution” and the proposed “representation” provision “acknowledges it.” He repeated that “the States have the right . . . to fix the elective franchise” and that the proposed representation provision “does not take it from them.” In fact, he preferred the reduction of representation to an “immediate declaration” that “would make them [Negroes] all voters”; he did not “want them to have the right of suffrage” until they had been educated in “their duties . . . as citizens.” 64 Although Garfield expressed his “profound regret” that the Joint Committee had been unable to “imbed . . . [suffrage] as a part of the fundamental law of the land,” he stated, “I am willing . . . when I cannot get all I wish to take what I can get.” 65 Similarly, John F. Farnsworth of Illinois stated, “I should prefer to see incorporated into the Constitution a guarantee of universal suffrage; as we cannot get the required two-thirds for that, I cordially support this proposition as the next best.” 66

  Nathaniel P. Banks of Massachusetts congratulated the Joint Committee for “waiv[ing] this matter in deference to public opinion,” and George F. Miller of Pennsylvania stated, “This amendment will settle the complication in regard to suffrage and representation, leaving each State to regulate that for itself.” 67 Against this mass three Democrats raised the possibility in the House that the amendment might affect suffrage qualifications.68 On the other hand, leading Democrats—Senators Reverdy Johnson and Garrett Davis—better understood that it left suffrage to the States.69 These historical materials, which by no means exhaust the quotable statements,70 seem to me, as to Robert Dixon and Ward Elliott, “overpowering,” “overwhelming.” 71 In discreetly skirting the issue the Court tacitly acknowledged their unimpeachability. The rebuttal thus eschewed by Chief Justice Warren was undertaken by Professor Van Alstyne, and it emboldened Justice Brennan to pick up the cudgels in a later case, Oregon v. Mitchell.

  Before examining the Warren and Brennan opinions it is desirable to consider in this setting the argument against reapportionment and its relation to suffrage.

  Supplementary Note on Suffrage

  Howard is confirmed by the Report of the Joint Committee, which drafted the Amendment: “It was doubtful . . . whether the States would surrender a power they had always exercised, and to which they were attached.”

  [1.]Van Alstyne 36; James 21.

  [2.]Supra Chapter 1 at notes 55–56. Roscoe Conkling of New York likewise acknowledged that the “representation” proposal “was primarily for party and sectional advantage.” Kendrick 204; see also id. 207 and infra note 4.

  [3.]Donnelly remarked, “To pass this law and then hope that South Carolina, moved by the hope of future power, would do justice to the negro is absurd. She has 291,000 whites and 412,000 blacks. To pass such a law would be for the governing power to divest itself of the government and hand it over to a subject and despised caste . . . The same is true, more or less, of all the South.” Globe 378. Julian of Indiana likewise placed little hope in “representation” as an inducement to the grant of suffrage because southern “scorn of an enslaved and downtrodden race is as intense as ever. They hate the negro.” Globe 58. Boutwell of Massachusetts admitted “the possibility that ultimately those eleven States may be restored to representative power without the right of franchise being conferred [by them] upon the colored people.” Globe 2508.

  [4.]Globe App. 94. Ward Elliott remarks, “The post–Civil War Radical Republicans, as a group, cared very little for the black vote until they came to believe that it would help to secure their position . . . against a Democratic resurgence. Once convinced that theywould profit from the black vote, they passed the Fifteenth Amendment.” The Rise of a Guardian Democracy 2 (1974); see also id. 204. Section 2 “was not primarily devised for the protection of Negro rights and the provision of Negro equality. Its primary purpose . . . was to put the southern states” under northern control. C. Vann Woodward, “Seeds of Failure in Radical Race Policy,” in New Frontiers of the American Reconstruction 135 (Harold M. Hyman ed. 1966). Aaron Harding of Kentucky tauntingly asked “if there is a single man among you who would vote for negro suffrage if he believed the negroes would vote the Democratic ticket? Not one, and you know it.” Globe 449. Although McKee of Kentucky favored the limitation of representation, he opposed Negro suffrage in the District of Columbia because he did not believe “that this race, coming immediately out of bondage, is fit for all rights of citizens.” Id. 452. When John Bright expressed “reservations about enfranchising this large unlettered electorate,” Sumner wrote, “Without them, the old enemy will reappear . . .” Quoted in Donald, Sumner II 201.

  [5.]As Michael Les Benedict justly remarks, the §2 curtailment of representation was “necessary only if Republicans did not intend to force black suffrage on the reluctant South.” A Compromise of Principle: Conservative Republicans and Reconstruction 1863–1869 136 (1975).

  [6.]377 U.S. 533, 555, 558 (1964).

  [7.]See W. R. Brock, An American Crisis: Congress and Reconstruction (1963). This will be discussed infra Chapter 10.

  [8.]377 U.S. at 590.

  [9.]C. Auerbach, “The Reapportionment Cases: One Person, One Vote—One Vote, One Value,” 1964 S. Ct. Rev. 1, 75.

  [10.]Van Alstyne 36.

  [11.]400 U.S. 112, 152 (1970).

  [12.]Globe 685.

  [13.]Id. 1182. Senator Yates of Illinois declared “suffrage . . . the only remedy,” id. 3037.

  [14.]Id. 2462, 2882, 310, 589, 867.

  [15.]Donald, Sumner II 202. Senator Garrett Davis of Kentucky stated, “Negro suffrage is political arsenic. If it is not, why do not the free States open wide their throats and gulp down the graceful and invigorating draught?” Globe 246.

  [16.]Van Alstyne 69–70. See also infra Chapter 5 at note 74. “The off-year state elections of 1867,” during which ratification of the Fourteenth Amendment was debated, “made clear the popular hostility to black suffrage in the North.” Morton Keller, Affairs of State 81 (1977).

  [17.]Globe 1182.

  [18.]Id. 2766.

  [19.]Infra Chapter 5 at note 49.

  [20.]Van Alstyne 69.

  [21.]See infra Chapter 6 at note 53.

  [22.]In an analogous situation Van Alstyne states, “It is even likely, by way of conjecture, that had the subject [reapportionment] been discussed there might have been a disavowal of an intention to apply the Equal Protection clause to malapportionment, at least at that time . . . [But] hypothetical answers to hypothetical questions never actually entertained at the time would be a most dubious basis for expounding the content of ‘equal protection’ one hundred years later.” Van Alstyne 85.

  [23.]Oregon v. Mitchell, 400 U.S. 112, 278. Justices White and Marshall joined in this opinion.

  [24.]Donald, Sumner II 158. Sumner himself had stated that “one must not assume ‘that a race, degraded for long generations under the iron heel of bondage, can be taught at once all the political duties of an American citizen’ . . . he thought that most of the negroes, free and contented, would remain in the South as ‘a dependent and amiable peasantry,’ ” Donald, Sumner I 235. But after 1864 he shifted because, as he wrote, “Without them, the old enemy [slave oligarchy] will reappear . . . and in alliance with the Northern democracy, put us all in peril again.” Donald, Sumner II 201.

  [25.]Fawn M. Brodie, Thaddeus Stevens: Scourge of the South 211 (1959); C. Vann Woodward, The Burden of Southern History 92 (1960).

  [26.]James 101.

  [27.]Brodie, supra note 25 at 230–231.

  [28.]Globe 358. Nathaniel Banks of Massachusetts stated, “The public opinion of the country is such at this precise moment [May 1866] as to make it impossible we should do it.” Id. 2532.

  [29.]Id. 704.

  [30.]Id. 1256.

  [31.]Id. 2143. Senator Henderson stated, “the country is not yet prepared” to grant Negro suffrage. Id. 3035. Senator Sherman said, “no man can doubt . . . there was a strong and powerful prejudice in the Army and among all classes of citizens against extending the right of suffrage to negroes.” Globe App. 127.

  [32.]See: Senator Lane of Kansas, Globe 1799; Garfield and Ashley of Ohio, id. 2462, 2882; Senators Howard, Poland, and Sherman, id. 2766, 2963, and Globe App. 131.

  [33.]Globe 4000. His similar motion on July 27 respecting Nebraska was rejected 34 to 5, id. 4222.

  [34.]Id. 2766 (emphasis added).

  [35.]Id. 2542.

  [36.]Woodward, supra note 4 at 137.

  [37.]Globe 2446. Senator Henry Anthony of Rhode Island asserted that “he would rather have cholera itself than such a bill.” Phillip S. Paludan, A Covenant With Death 48 (1975).

  [38.]Quoted in Globe 2096. Governor (soon to be Senator) Yates of Illinois stated in 1865, “I am for unlimited state sovereignty in the true sense, in the sense that the State is to control all its municipal and local legislation and I would be the first to resist all attempts upon the part of the Federal Government to interpose tyrannical usurpation of power in controlling the legislation of States.” Paludan, supra note 37 at 34.

  [39.]The State “police power extends over all subjects within the territorial limits of the States and has never been conceded to the United States.” Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 625 (1842), quoted in Globe 1270. Samuel S. Marshall of Illinois stated, “It is a fundamental principle of American law that the regulation of the local police of all the domestic affairs of a State belong to the State itself, and not to the Federal Government.” Globe 627.

  [40.]Globe 1083, 1085–1086, 1063; infra Chapter 10 at notes 77–78.

  [41.]Globe 1295–1296.

  [42.]Id. 358; see also Delano, Globe App. 158; Charles A. Eldredge, Globe 1154.

  [43.]Globe 1292. He repeated, “I have always believed that the protection in time of peace within the State of all the rights of person and citizen was of the powers reserved to the States.” Id. 1293. Commenting earlier on Hale’s view that “the citizens must rely upon the State for their protection,” he said, “I admit that such is the rule under the Constitution as it now stands.” Id. 1093. Such reiteration testifies to pervasive uneasiness about the impairment of State sovereignty, uneasiness shared by his fellow Ohioan, Chief Justice Salmon Chase, who regretted that the Joint Committee had gone too far: “Even the loyal people in Northern states, he feared, might oppose the amendment because of its threat to state rights.” James 118. This was a man of “radical tendencies.” Id.

  [44.]Globe 1761.

  [45.]Id. 358; see also Thomas N. Stillwell of Indiana, id. 670; Senator Cowan, id. 1286; Shellabarger, id. 1293; Senator Poland, id. 2962.

  [46.]Id. 536. Senator Lane of Indiana, who favored strong measures against the rebels, said, “the right to determine the qualifications of electors is left with the several States . . . I do not believe that Congress has a right to interfere between [Indiana] and the people and fix the qualifications of voters.” Id. 740.

  [47.]Id. 1279, 1278; see also id. 704. This assurance was meaningless if §1 conferred suffrage.

  [48.]Id. 2143.

  [49.]Globe App. 120.

  [50.]Flack 68. “One reason the Reconstruction of the South loomed so high to northerners,” Harold Hyman concluded, “was less that blacks were involved than that every one understood the pre-eminence of states . . . in affecting all their citizens’ lives.” Harold M. Hyman, A More Perfect Union 426 (1973). In “early 1865 virtually unhampered state powers were considered fundamental for liberty, federalism and democracy.” Id. 301. “A heavy phalanx of Republican politicos, including Sherman and Trumbull . . . were states rights nationalists, suspicious of any new functional path the nation travelled.” Id. 304. “No one reading the debates carefully,” said Graham at 312, “will question the framers’ devotion to federalism, even the extreme Radicals.”

  [51.]The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 82 (1872).

  [52.]Kelly’s remark in “Comment on Harold M. Hyman’s Paper” in New Frontiers of the American Reconstruction 55 (Harold M. Hyman ed.), written in 1966, constitutes to my mind a tacit repudiation of his earlier pieces. Hyman notes Republican unwillingness “to travel any road more rugged than the Civil Rights—Freedmen’s Bureau extension—Fourteenth Amendment route that left the states masters of their fates.” Hyman, supra note 50 at 470; see also id. 440, 448.

  [53.]For earlier variants see James, Index, s.v. “Representation.”

  [54.]Globe 2535.

  [55.]Reynolds v. Sims, 377 U.S. 533, 594.

  [56.]Van Alstyne, 36, refers to “the kind of blinding light that Mr. Justice Harlan sees here.”

  [57.]Globe 2542.

  [58.]Id. 432.

  [59.]Id. 1279. Fessenden explained the Committee’s espousal of the “representation” provision subsequently embodied in §2: “we cannot put into the Constitution, owing to existing prejudices and existing institutions, an entire exclusion of all class distinctions.” Id. 705. The effect of the proposed amendment, he stated, “is simply to leave the power where it is, and leave it perfectly in the power of the States to regulate suffrage as they please.” Id.

  [60.]Id. 2766, 3039. Senator Wilson of Massachusetts stated that the “right to vote . . . has been regulated by the State in every State . . . from the beginning of the Government.” Id. 1255. Senator Yates of Illinois did “not deny the power of the States to regulate suffrage.” Id.

  [61.]Globe 3038, 2943, 2963–2964, Globe App. 219. Senator Henderson had proposed an amendment to the “representation” proposal, prohibiting discrimination with respect to suffrage (id. 702), but he later supported “representation” because “the country is not yet prepared” for Negro suffrage. Id. 3035. Senator Reverdy Johnson, probably the most open-minded of the Democrats, understood the Amendment to concede “to the States . . . the exclusive right to regulate the franchise” so that the United States would “be impotent to redress” exclusion of blacks. Globe 3027. Another Democrat, Senator Davis, stated that the measure “shrinks from . . . openly forcing suffrage upon the States, but attempts by a great penalty to coerce them to accept it.” Globe App. 240. See also Senator Hendricks, Globe 2939.

  [62.]Id. 141. [Joint Committee on Reconstruction, Report No. 112, 39th Cong., 1st Sess. 7 (June 8, 1866), reprinted in Avins, The Reconstruction Amendments’ Debates 94 (1967), referring to the effect of emancipation upon the three-fifths representation provision, stated: “When all become free, representation for all necessarily follows. As a consequence the inevitable effect of the rebellion would be to increase the political power of the insurrectionary States . . . The increase of representation necessarily resulting from the abolition of slavery, was considered the most important element in the questions arising out of the changed condition of affairs, and the necessity for some fundamental action in this regard seemed imperative.” The answer was section 2 of the Amendment.]

  [63.]Globe 357, 358, 359.

  [64.]Id. 428, 536.

  [65.]Id. 2462.

  [66.]Id. 2540.

  [67.]Id. 2532, 2510.

  [68.]Niblack, Benjamin M. Boyer of Pennsylvania, and Andrew J. Rogers of New Jersey. Justice Harlan comments on these statements in Oregon v. Mitchell, 400 U.S. at 181–182.

  [69.]Supra note 61.

  [70.]See supra note 55 at 626–632. Samuel McKee of Kentucky, who supported the Amendment, stated, “this House is not prepared to enfranchise all men.” Globe 2505. William D. Kelley of Pennsylvania said, “Could I have controlled the report of the Committee of Fifteen, it would have proposed to give the right of suffrage to every loyal man.” Id. 2469. Boutwell of Massachusetts stated, “The proposition in the matter of suffrage falls short of what I desire . . . I demand . . . the franchise for all loyal citizens.” Id. 2508. But like others of the same persuasion, he voted for the Amendment. Broomall understood §2 “to limit the representation of the several States as those States themselves shall limit suffrage.” Id. 2498. Lawrence said that the “representation” amendment “does not propose to extend the right of suffrage to or to withhold it from any class of people . . . It does not propose to disturb the commonly received construction of the Constitution which leaves to the State the right to determine who shall or shall not be voters.” Id. 404. G. F. Miller of Pennsylvania conceded “to each State the right to regulate the right of suffrage . . . they ought not to have a representation for” excluded persons. The Amendment “leav[es] each State to regulate that for itself.” Globe 2510. See also Thayer, id. 282; Eliot, id. 2511.

  [71.]Robert Dixon, “Reapportionment in the Supreme Court and Congress: Constitutional Struggle for Fair Representation,” 63 Mich. L. Rev. 209, 212 (1964); Elliott, supra note 4 at 127.

• Back to Top

  18: 7: Segregated Schools - Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment [1977]

  Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment, Foreword by Forrest McDonald (2nd ed.) (Indianapolis: Liberty Fund, 1997). Chapter: 7: Segregated Schools

  Accessed from oll.libertyfund.org/title/675/106923 on 2008-08-23

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  7

  Segregated Schools

  The “desegregation” decision in Brown v. Board of Education1 was, as Richard Kluger called it, an act of “Simple Justice,” 2 a long overdue attempt to rectify the grievous wrongs done to the blacks. For the legal historian, however, the question is whether the Fourteenth Amendment authorized the Supreme Court to perform that act.3 For the Court, like every agency of government, may act only within the limits of its constitutional powers. As Lee stated in the Virginia Ratification Convention, “When a question arises with respect to the legality of any power, exercised or assumed,” the question will be, “ Is it enumerated in the Constitution? . . . It is otherwise arbitrary and unconstitutional.” 4

  In his illuminating study of the way in which the desegregation case was handled in the Supreme Court, Kluger asks, “Could it be reasonably claimed that segregation had been outlawed by the Fourteenth when the yet more basic emblem of citizenship—the ballot—had been withheld from the Negro under that amendment?” 5 Given the rampant racism in the North of 1866—which still has to loose its grip—it needs to be explained how a North which provided for or mandated segregated schools6 was brought to vote for desegregation in the Amendment.

  When the “desegregation” case came to the Court in 1952, Justice Frankfurter assigned the task of compiling the legislative history of the Amendment to his brilliant clerk, Alexander Bickel,7 who was destined to become one of the foremost authorities in the field of constitutional law. Upon completing the assignment, in August 1953, Bickel delivered his memorandum to Frankfurter with a covering letter in which he stated: “it is impossible to conclude that the 39th Congress intended that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting.” 8 When he later published a revision of that memorandum, he concluded: “there is no evidence whatever showing that for its sponsors the civil rights formula had anything to do with unsegregated schools. Wilson, its sponsor in the House, specifically disclaimed any such notion.” 9 Wilson, chairman of the House Judiciary Committee and the House Manager of the Bill, who could therefore speak authoritatively, had advised the House that the words “civil rights . . . do not mean that all citizens shall sit on juries, or that their children shall attend the same schools. These are not civil rights.” 10 Wilson’s statement is proof positive that segregation was excluded from the scope of the bill.

  Another piece of evidence, which Alfred Kelly, one of the historians drawn into the case by the NAACP,11 considered “very damning,” was the “removal of the ‘no discrimination’ clause from the Civil Rights Bill.” The Bill, he stated, “was amended specifically to eliminate any reference to discriminatory practices like school segregation . . . it looked as if a specific exclusion had been made.” 12 The deletion was made at the insistence of John A. Bingham, the architect of the Fourteenth Amendment, whom neoabolitionists regard as the conduit through which abolitionist concepts of substantive due process and equal protection were poured into the Amendment.13 Roughly speaking, he moved for instructions to the Judiciary Committee to strike the “no discrimination” sentence of the Bill,14 in order to render it “less oppressive and therefore less objectionable.” The enactment of laws “for the general government of the people” was reserved to the States; “civil rights,” he continued, “include and embrace every right that pertains to a citizen as such,” including “political rights.” On this view the Bill, according to Bingham, proposed “simply to strike down by congressional enactment every state constitution which makes a discrimination on account of race or color in any of the civil rights of the citizen.” With “some few exceptions every state in the Union does make some discrimination . . . in respect of civil rights on account of color.” Hence the “no discrimination” sentence “must be striken out or the constitutions of the States are to be abolished by your act.” Deletion of this sentence would remove what he considered the Bill’s “oppressive and I might say its unjust provisions,” all of which adds up to a States’ Rights manifesto. Bingham’s censure, however, does not extend to the enumerated rights that follow the “no discrimination” clause; these he quotes with approval, but asserts that the needed reform should be accomplished “not by an arbitrary assumption of power, but by amending the Constitution . . . expressly forbidding the States from any such abuse [that is, denial of said specified rights] in the future.” 15 In short, the enumerated rights should be protected by Amendment against State abuse, whereas the “civil rights,” which embraced any and every right, should be excised because “oppressive.” In this Bingham was in accord with the restricted objectives of almost all of his Republican colleagues who spoke to the measure.16 Bickel therefore correctly concluded that Bingham, “while committing himself to the need for safeguarding by constitutional amendment the specific rights enumerated in the body of section 1, was anything but willing to make a similar commitment to ‘civil rights’ in general.” 17

  Not without cause was this regarded gloomily in the camp of the NAACP. Kluger relates:

  In calling for the deletion, Bingham, the former abolition theorist, had openly acknowledged that the bill as drafted would have prohibited statutes such as school segregation. Since that broad language was in fact deleted from the final form of the bill and since many of the proponents of the Fourteenth held that the amendment had no purpose beyond constitutionalizing the Civil Rights Act, it had therefore seemed to Kelly, [Thurgood] Marshall, Ming, and others in the NAACP camp that they could not reasonably argue that the framers intended the amendment to prohibit school segregation.18

  Finally, a “light” broke through, “a really plausible interpretation” dawned on Kelly: “Bingham’s objection to the ‘no discrimination’ was based solely on the apparent lack of constitutional authority for so sweeping a congressional enactment.” 19 This was a “light” that failed. Kelly completely overlooked Bingham’s separation between the too-inclusive “civil rights,” which were deleted, and the enumerated rights, which, because they also trenched on traditional State governance, required an amendment. Justice Black understood this if Kelly did not.20

  More important, Chairman Wilson confirms that the deletion was merely designed to repel a “latitudinarian” construction:

  Some members of the House thought, in the general words of the first section in relation to civil rights, it might be held by the courts that the right of suffrage was included in those rights. To obviate that difficulty and the difficulty growing out of any other construction beyond the specific rights named in the section, our amendment strikes out all of those general terms and leaves the bill with the rights specified in the section.

  The deletion, Wilson further explained, was made because “some gentlemen were apprehensive that the words we propose to strike out might give warrant for a latitudinarian construction not intended.” 21

  To Kelly, who later defended the desegregation decision, Bickel’s view “seems a very doubtful reading of Bingham’s position. It ignores his extensive extremist antislavery background as well as his position in Congress as one of the strong Radical Republicans.” 22 But neither Bingham’s background nor his position had dissuaded him from opposition to Negro suffrage.23 Moreover, as Bickel informed Justice Frankfurter, “It was doubtful that an explicit ‘no discrimination’ provision going beyond the enumerated rights in the Civil Rights Bill as finally enacted could have passed in the Thirty-Ninth Congress.” 24 At this time “Eight [Northern] states either provided for separate schools or left it up to local communities to adopt that practice if they wished. Five states outside the old Confederacy either directly or by implication excluded colored children entirely from their public schools.” 25 Kluger comments, “If Congress and state legislatures had understood that the amendment was to wipe away the practices, surely there would have been more than a few howls.” 26 With suffrage unequivocally barred there was no reason to infer that desegregation, a far more touchy matter, was required.

  Then there was another thorny fact: “Congress had permitted segregated schools in the District of Columbia from 1864 onward.” 27 Sumner’s “long fight to abolish segregated Negro schools in the District of Columbia” had been “unavailing.” 28 With good reason did Judge E. Barrett Prettyman hold in Carr v. Corning29 that congressional support for segregated schools in the District of Columbia contemporaneously with the adoption of the Amendment (and the Civil Rights Act) was conclusive evidence that Congress had not intended §1 of the Amendment to invalidate school segregation laws. Kelly too lightly dismissed this: “technically the parallel is not constitutionally precise or apposite.” 30 To the contrary, the parallel is both “precise and apposite.” It has long been the rule that laws dealing with the same subject—in pari materia—must be construed with reference to each other, “as if they were one law.” 31 The Amendment originated as a congressional Joint Resolution, so it is entirely appropriate to look to the light shed contemporaneously by the District of Columbia bills on the meaning of the Resolution. In truth, it is unrealistic to presume that a Congress which has plenary jurisdiction over the District and yet refused to bar segregation there would turn around to invade State sovereignty, which the framers were zealous to preserve, in order to impose a requirement of desegregation upon the States. The difference was fully appreciated by Senator Henry Wilson, a Radical Republican from Massachusetts, who introduced a bill providing for suffrage in the District of Columbia, but lamented that in “dealing with the States,” State “constitutions block up the way and we may not overleap the barriers.” 32

  The relation of mixed schools to the limited objectives that were expressed in the Civil Rights Act was lucidly summarized by John L. Thomas of Maryland:

  As a freeman, he is entitled to acquire and dispose of real and other property . . . to have his life, liberty, and person protected by the same laws that protect me . . . so shall he not only have the right to enforce his contract, but to that end shall be received as a witness in a court of justice on the same terms . . . It would be an outrage . . . [if] we were to refuse to throw around them such legal guards as will prove their only protection and secure to them the enforcement of their rights.

  I will go even further . . . and will vote for all measures to elevate their condition and to educate them separate and apart from the whites . . . [B]ut when it comes to placing him upon the same social and political level as my own race, I must refuse to do it.33

  There is yet other evidence that the framers had no intention of striking down segregation. The Senate gallery itself was segregated, as Senator Reverdy Johnson mordantly remarked.34 The Carl Schurz report Education of the Freedmen spoke throughout of “ ‘colored schools,’ ‘school houses in which colored children were taught.’ There were no references to unsegregated schools, even as an ultimate objective.” 35 Instead there was a pervasive assumption that segregation would remain. Referring to the burning of black schools in Maryland, Josiah B. Grinnell of Iowa said, give them schoolhouses and “invite schoolmasters from all over the world to come and instruct them.” Senator Daniel Clark of New Hampshire stated, “you may establish for him schools.” Ignatius Donnelly of Minnesota stated, “Educate him and he will himself see to it that the common schools shall forever continue among his people.” 36 Senator William P. Fessenden said of the “representation” proposal that was to become §2 of the Fourteenth Amendment: it “should serve as an inducement to the southern States to build school houses . . . and educate their colored children until they are fit to vote.” 37 In vetoing the antecedent Freedmen’s Bureau Bill, President Johnson noted that it provided for the “erection for their benefit of suitable buildings for asylums and schools,” and objected that Congress “has never founded schools for any class of our own people.” 38 Thaddeus Stevens “did not publicly object to the separation of the races in the schools although he was against segregation in theory . . . But he never pressed for legal enforcement of this kind of equality, as Charles Sumner did, believing it achievement enough that the South would have free schools at all.” 39

  Additional light may be gathered from post–Fourteenth Amendment developments, part of Sumner’s continuing campaign for desegregated schools. On March 16, 1867, Sumner moved to amend a Supplementary Bill to require “that State constitutions provide for a system of non-discriminatory public schools.” The motion failed; it “went beyond what majority sentiment would sustain.” 40 Let an impassioned apostle of the incorporation of abolitionist ideology—Howard Jay Graham—sum up:

  There were many reasons why men’s understanding of equal protection, as applied to educational matters, was imperfect in 1866 . . . Negroes were barred from public schools of the North and still widely regarded as “racially inferior” and “incapable of education.” Even comparatively enlightened leaders then accepted segregation in the schools.41

  The “imperfect” “understanding of equal protection” in 1866 means that the framers did not conceive it in the vastly broadened terms given to the phrase by the Warren Court. How did this history fare in the Warren Court?

  In his painstaking reconstruction of the progress of Brown v. Board of Education, Richard Kluger has furnished some fascinating glimpses behind the portals of the Supreme Court.42 The case was first argued before the Vinson Court; Chief Justice Vinson “found it ‘Hard to get away’ from the contemporary view by its framers that the Fourteenth Amendment did not prohibit segregation.” Jackson noted, “For 90 years segregated schools [existed] in the city [Washington].” 43 Frankfurter, “a keen observer of his colleagues’ voting inclinations,” listed Clark—along with Vinson, Reed, and Jackson—as “probable dissenters if the Court voted to overturn Plessy in the spring of 1953.” 44 If they were to be brought about, time was needed; a decision outlawing segregation by a divided Court would have produced tremendous shock waves.45 With Bickel’s aid Frankfurter framed five questions for reargument, which the Court submitted to counsel and put the case over to the next term.46 The Frankfurter tactic paid off in an unexpected way: the sudden demise of Chief Justice Vinson just before the Brown reargument. How much that mattered may be gathered from Frankfurter’s remark: “This is the first indication I have ever had that there is a God.” 47 And that remark also reveals that men and votes, not the impalpable “consensus of society” picked up by judicial antennae, are what count.

  The most interesting figure was Frankfurter himself. According to William Coleman, who had clerked for him a few years earlier and was the coordinator of research for the NAACP in the various States, Frankfurter “was for ending segregation from the very start.” 48 A remarkable fact: Frankfurter, the sworn foe of subjective judgment, who disclaimed enforcement of his own “private view rather than the consensus of society’s opinion,” 49 had made up his mind “from the day the cases were taken” 50 that segregation must go! This was before hearing argument or reading briefs in a case of extraordinary national importance.51 Not that he was unaware of the constitutional obstacles. Kluger recounts that Frankfurter “had studied the history of the Fourteenth Amendment” and concluded that “in all likelihood, the framers of the amendment had not intended to outlaw segregation.” 52 His conclusion must have been greatly strengthened by the Bickel memorandum, which he found so impressive that “he had it set up in type in the Court’s basement print shop and distributed among the Justices a few days before the Brown reargument.” 53 Bickel showed, and his demonstration is yet to be successfully controverted, that the 39th Congress meant to leave segregation “as is” —to the States. After the distribution of the Bickel memorandum, Jackson wrote a file memorandum dated February 15, 1954, in which he stated: “despite my personal satisfaction with the Court’s [forthcoming] judgment, I simply cannot find, in surveying all the usual sources of law, anything which warrants me in saying that it is required by the original purpose and intent of the Fourteenth or Fifth Amendment.” 54 He told the Conference that he would “file a separate concurring opinion” if the “Court feigned that the Justices were doing anything other than declaring new law for a new day.” 55 This, Kluger comments, was asking the majority to admit that “there was no judicial basis for its decision,” that “it was acting in a frankly unjudicial way.” 56 Kluger considers it “a scarcely reasonable request to make of the brethren.” 57 Why not? What kind of “consensus of society” (which the Court purportedly effectuates) is it that cannot withstand the truth—that effectuation required “new law for a new day”? An adult jurisprudence for an age of “realism” surely called for an end to the pretense that it was the Constitution, not the Justices, who spoke.58 Concealment suggests there may in fact have been no consensus.59 Perhaps Jackson’s insistence impelled Chief Justice Warren—after labeling the history “inconclusive” 60 —to state that “we cannot turn back the clock to 1868,” 61 a veiled declaration that the intention of the framers was irrelevant and that the Court was revising the Constitution to meet present-day needs.62

  Justice Frankfurter, the professed devotee of “self-restraint,” reached a similar conclusion, but in different rhetoric. He had asked, Justice Burton noted, “What justifies us in saying that what was equal in 1868 is not equal now?” 63 and in a file memorandum he formulated his own answer:

  the equality of laws enshrined in a constitution which was “made for an undefined and expanding future . . .” . . . is not a fixed formula defined with finality at a particular time. It does not reflect, as a congealed summary, the social arrangements and beliefs of a particular epoch . . . The effect of changes in men’s feelings for what is right and just is equally relevant in determining whether a discrimination denies the equal protection of the laws.64

  Although the framers were well aware of the nation’s “expanding future,” they nonetheless, for example, rejected suffrage, “present or prospective.” They knew that Article V provided the means to avoid “congealment,” 65 as was before long evidenced by adoption of the Fifteenth Amendment. The real issue, therefore, was not whether the Constitution must be “congealed,” but rather who was to make the change—the people or the Justices. Buried in Frankfurter’s fine phrases is a confession that the people could not be trusted to reflect the “changes in men’s feelings” by an amendment, and that in consequence the Justices had to rewrite the Constitution. Even in a memorandum for his own use, Frankfurter could not bring himself to admit that he was “making new law for a new day,” but sought to disguise the fact with “majestic generalities.”

  In Chapter 10 I shall show that the framers employed “equal protection of the laws” to express their limited purpose: to secure the rights enumerated in the Civil Rights Act, and those only, against discriminatory State legislation. With respect to those rights there could no longer be one law for whites and another for blacks. The limitless objectives that Frankfurter read into the phrase were utterly beyond the contemplation of the framers. For the stubborn fact is that racism was, and still remains, an ugly fact of American life;66 as Jackson’s file memorandum stated, “Neither North nor South has been willing to adapt its racial practices to its professions.” 67 “It was into this moral void, ” Kluger states, “that the Supreme Court under Earl Warren now stepped,” 68 not to give effect to a national consensus, still less to the Fourteenth Amendment, but to revise it for the people’s own good. But “the criterion of constitutionality,” said Justice Holmes, “is not whether we believe the law to be for the public good.” 69

  Supplementary Note on Segregated Schools

  brown v. board of education

  [1.]347 U.S. 483 (1954).

  [2.]Richard Kluger, Simple Justice (1976); hereinafter Kluger.

  [3.]“The result,” Archibald Cox stated, “can only be described as a revolution in constitutional law.” The Role of the Supreme Court in American Government 57 (1976).

  [4.]3 Jonathan Eliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 186 (1836); Berger, Congress v. The Supreme Court 13–16.

  [5.]Kluger 635.

  [6.]Infra at notes 24–25.

  [7.]Kluger 599, 653.

  [8.]Id. 654. Kluger states that the Bickel memorandum held that “the legislative history, while revealing no evidence that the framers of the amendment had intended to prohibit school segregation, did not foreclose future generations from acting on the question, either by congressional statute or by judicial review.” Id. 655; see also 634. But this is at odds with Bickel’s covering letter, supra Chapter 6 at note 7. In fact, as will shortly appear, the framers deliberately excluded school segregation from the ambit of the Civil Rights Bill and therefore of the Amendment.

  [9.]Bickel 56.

  [10.]Globe 1117. Wilson’s statement is more fully quoted supra Chapter 2 at note 26. He later reiterated that the limited objectives of the bill did not extend to “setting aside the school laws and jury laws.” Globe 1294.

  [11.]Kluger 626.

  [12.]Id. 635. Among the legal historians drawn into preparation of the briefs by the NAACP was Howard Jay Graham. Id. 625–626. “He was particularly troubled by Representative Wilson’s insistence during the phase of the debates dealing with the ‘no discrimination’ clause that the Civil Rights Bill was not intended to outlaw separate schools. That negative reference, Graham reported, was unfortunate, particularly since he was House Manager of the . . . bill.” Id. 634–635.
  
  The “key session” of the NAACP “giant conference running for three days and nights” was “devoted to the papers of [Howard] Jay Graham and Alfred Kelly on the troubling relationship between the Civil Rights Act of 1866, which had been specifically stripped of its broad ‘no discrimination’ language, and the Fourteenth Amendment, created in its immediate aftermath and conceived, as many historians believed, simply to constitutionalize the rights act.” Id. 637. The paper Kelly delivered was on “the damning modification of the Civil Rights Bill in the House and its apparent identity in purpose with the Fourteenth Amendment.” He recounted that he “didn’t understand the relationship between advocacy and history at that point” and considered the problem “nearly insurmountable.” Id. 637.

  [13.]TenBroek 145–148; Graham 280, 283.

  [14.]The Bill is set out in pertinent part supra Chapter 2 at note 14. [Justice Harlan pointed out that Bingham, in the meetings of the Joint Committee on Reconstruction, was “successful in replacing section 1 of Owen’s proposal, which read ‘No discrimination . . . as to the civil rights,’ with the ‘abridge the privileges or immunities of citizens.’ ” Oregon v. Mitchell, 400 U.S. 112, 172 (1970) (emphasis added).]

  [15.]Globe 1291–1293 (emphasis added).

  [16.]E.g., Wilson, supra at note 10.

  [17.]Bickel 24.

  [18.]Kluger 640–641. The noted historian Henry Steele Commager had advised the NAACP that “The framers of the amendment did not, so far as we know, intend that it should be used to end segregation in schools.” Id. 620.

  [19.]Id. 641.

  [20.]Justice Black, for whom Bingham is the authoritative expositor, recognized that Bingham objected to the Civil Rights Bill because “it would actually strip the states of power to govern, centralizing all power in the Federal Government. To this he was opposed.” Adamson v. California, 332 U.S. 46, 100 (1947), dissenting opinion.
  
  Kluger 641, relates, “One hurdle in the way of [Kelly’s] reading of Bingham’s intention was a later speech of Thaddeus Stevens, the most powerful man in the House and a strong ally of Bingham. Among other things, Stevens said that a principal purpose of the Fourteenth Amendment had indeed been to re-enact and therefore insure the constitutionality of the Civil Rights Act (even shorn of its broad ‘no discrimination’ language)—an apparent concession to those who wished to interpret the amendment narrowly. But Kelly concluded that the apparently damaging portion of Stevens’ speech had to be considered against the larger political picture and the clear drift of Stevens’ generally radical utterances.” One thing he was plainly not so radical about was desegregation in the schools. See infra at note 39.

  [21.]Globe 1366.

  [22.]Kelly, Fourteenth 1068 note 73. In this very article, however, Kelly concluded, “It seems highly probable, then, that the Civil Rights Act, as finally passed, was not intended to ban state racial segregation and classification laws. The main force of the Conservatives’ attack on the ‘no discrimination’ clause was that it would indeed destroy all race classification laws.” Id. 1069–1070.
  
  Bingham’s remarks have been subject to varying interpretations, see Bickel 27 note 54; Kelly, Fourteenth 1068. Bickel sums up, “Whatever the ambiguities of his speech, one thing is certain. Unless one concludes that Bingham entertained apprehensions about the breadth of the term ‘civil rights’ and was unwilling at this stage, as a matter of policy, not constitutional law, to extend a federal guaranty covering all that might be included in that term, there is no rational explanation for his motion to strike it.” Bickel 25–26. Certainly Wilson so understood; supra at note 21.

  [23.]E.g., supra Chapter 5 at notes 42–43.

  [24.]Kluger 654–655.

  [25.]Id. 633–634.

  [26.]Id. 635.

  [27.]Id. The problem also troubled Justice Jackson, infra at note 43.

  [28.]Kelly, Fourteenth 1085. For example, when Senator Wilson proposed to allocate funds for the public schools in the District of Columbia, explaining that existing law provided “for the establishment of colored schools” in the District, and the funds would be divided pro rata, Reverdy Johnson asked for and received assurance that “there is no authority to have a mixture of children in any one school.” Globe 708–709.

  [29.]182 F.2d 14, 17 (D.C. Cir. 1950).

  [30.]Kelly, Fourteenth 1085.

  [31.]United States v. Freeman, 44 U.S. (3 How.) 556, 564 (1845). See also infra Appendix A note 46.

  [32.]Phillip S. Paludan, A Covenant With Death 50 (1975).

  [33.]Globe 263–264. For a similar expression by Patterson of New Hampshire, see supra Chapter 2 at note 30. So, too, Republican Senator Cowan of Pennsylvania was willing to secure to blacks “their natural rights” but not to desegregate the schools. Globe 500. See also Republican Thomas T. Davis of New York, infra Chapter 10 at note 21.

  [34.]Globe 766: “Why is it that [you have] separate places for the respective races even in your own chamber? Why are they not put together?”

  [35.]Bickel 10 note 29.

  [36.]Globe 652, 834, 590; cf. Donnelly, id. 513. Recall Lawrence’s exclusion of “political rights [and] those dependent on local law,” as was the privilege of attending public schools, supra Chapter 2 note 28, and Windom’s statement that the Civil Rights Bill does not confer “the privilege of voting” nor “social privileges.” Supra Chapter 2 note 30.
  
  John F. Farnsworth feared that enfranchisement alone might not suffice if it were dependent on reading and writing qualifications, for the States may “exclude him from the schools.” Globe 383. See also Frederick Pike of Maine, id. 407. Enfranchisement failed, as did attempts to open the schools. See infra note 40.

  [37.]Kendrick 206.

  [38.]Globe 916.

  [39.]Fawn Brodie, Thaddeus Stevens: Scourge of the South 320 (1959). Stevens assured the electorate in September 1866 that the Amendment “does not touch social or political rights.” James 201. Perhaps the reason, as Rogers noted, was that in “Pennsylvania there is a discrimination between the schools for white children and the schools for blacks. The laws there provide that certain schools shall be set aside for black persons,” and inquired whether Congress has a right to “interfere with these statutes.” Globe 1121. Senator Cowan of Pennsylvania objected to such interference. Id. 500.

  [40.]Fairman, History 329. Sumner “placed little stress upon the Fourteenth Amendment guarantee of equal protection of the laws; too many of his colleagues who had helped draft that ambiguous document would reply that they had never intended to outlaw segregation . . . When Senator Morrill insisted upon learning exactly where in the Constitution the federal government was given control ‘over matters of education, worship, amusement . . .’ Sumner discovered authorization in the Sermon on the Mount and in the Declaration of Independence.” Donald, Sumner II 532.
  
  As late as December 1871 Sumner reintroduced a bill which had been adversely reported in 1870–1871: “He maintained that hotels, public conveyances and schools . . . should be opened equally to all.” Flack 250. “Without this complementary bill,” the Civil Rights Act “was imperfect, he declared,” Flack 251. Though there was some contrariety of opinion, id. 253–265, the House, by a vote of 128 to 48, insisted on an amendment “striking out all reference to common schools,” id. 275. Senator Morrill opposed the Sumner bill because the “Federal Government had no right to take cognizance of matters of education, amusement . . . it is without warrant in the Constitution,” i.e., the Fourteenth Amendment. Id. 252–253.

  [41.]Graham 290 note 70. Nevertheless Graham stated that “no one is obliged or disposed to grant—that an outright majority of 1866–1868 did regard race segregation in their public schools, as a peculiar form of race discrimination—as one which in their judgment, would remain unaffected by the Fourteenth Amendment.” Id. 291.
  
  Compare with the foregoing history, in considerable part earlier set forth by Alexander Bickel, Charles Black’s recent statement: “I started, virtually [as of NAACP counsel], with Brown v. The Board of Education, a case which seemed to me then and still seems to me to have been as nearly syllogistic as a real law case can be. The Fourteenth Amendment, in the clear light of its history, and without any straining or special pleading, forbade all discrimination against black people as such, however euphemized and however daubed with cosmetics.” C. Black, “The Judicial Power as Guardian of Liberties,” statement prepared for delivery at a Symposium on Constitutional Liberties in Modern America, Wayne State University, Detroit, Michigan, October 16, 1976, 2 (emphasis added). Chief Justice Warren’s “syllogisms” are examined infra Chapter 13 at notes 56–60. Black’s “clear . . . history” seemed “inconclusive” to Chief Justice Warren, who chose rather not to “turn back the clock to 1868.” See infra at note 61.

  [42.]Among other things, Kluger consulted the notes of Justices Burton, Frankfurter, and Jackson, and interviewed several of the Justices and the Justices’ clerks. Kluger 788–789.

  [43.]Id. 590.

  [44.]Id. 612, 614; Plessy v. Ferguson, 163 U.S. 537 (1896), the “separate but equal” decision.

  [45.]Kluger 600. “Nothing could have been worse, for the Court or the nation itself, than a flurry of conflicting opinions that would confuse and anger the American people.” Id. 696. Desegregation could hardly have been imposed upon the nation by a divided Court; the stakes simply were too high. Frankfurter “played a pivotal role in bringing about a unanimous Court” in Brown. Joseph P. Lash, From the Diaries of Felix Frankfurter 83 (1975).

  [46.]Kluger 614–616.

  [47.]Id. 656. As Justice Frankfurter was dressing for the Vinson funeral, Bickel overheard him murmuring, “An act of Providence, an act of Providence.” Lash, supra note 45 at 83. Compare this with his condemnation of “Law” that turns on “contingencies in the choice of successors.” Infra Chapter 17 note 44.

  [48.]Kluger 624, 601. “When President Eisenhower appointed Earl Warren to the Chief Justiceship, Frankfurter took him to school on the issues in the Brown case in lengthy talks.” Lash, supra note 45 at 83–84. [Alexander Bickel, who was a clerk to Justice Frankfurter at the time Brown v. Board of Education was decided, wrote, “(W)hen the inner history of that case is known, we may find that he was a moving force in its decision.” Alexander Bickel, The Supreme Court and the Idea of Progress 33 (1978).]

  [49.]Infra Chapter 14 at note 50. In a file memorandum, the essence of which Frankfurter communicated to his brethren at a conference, he emphasized, “it is not our duty to express our personal attitudes towards these issues however deep our individual convictions may be. The opposite is true.” Kluger 684. [Justice Frankfurter stated, “Nor should resentment or injustice displace the controlling history in judicial construction of the Constitution.” United States v. Lovett, 328 U.S. 303, 323 (1946), concurring opinion.]

  [50.]Kluger 601. Bickel justly remarked that were the ultimate “reality” that judicial review spells nothing more than “personal preference,” the judicial “authority over us is totally intolerable and totally irreconcilable with the theory and practice of political democracy.” The Least Dangerous Branch 80 (1962).

  [51.]Justice Jackson “was worried about how a Court decision outlawing segregation could affect the nation’s respect for ‘a supposedly stable organic law’ if the Justices were now, overnight, as it were, to alter an interpretation of the Fourteenth Amendment which had stood for more than three-quarters of a century.” Kluger 604.

  [52.]Id. 598. Justice Tom Clark “had been surprised by the legislative history, since he had always thought that one of the avowed purposes of the Fourteenth Amendment had been to abolish segregation.” Id. 682.

  [53.]Id. 653.

  [54.]Id. 688–689.

  [55.]Id. 681, 609.

  [56.]Id. 690, 683.

  [57.]Id. 683.

  [58.]A deterrent, in Justice Frankfurter’s words, was that the decision required “the adjustment of men’s minds and actions to the unfamiliar and unpleasant.” Id. 615. See infra Chapter 14 notes 140, 143, Chapter 23 at notes 30–34.

  [59.]Edmond Cahn welcomed judicial intervention precisely because no amendment could have been obtained. Infra Chapter 15 at note 14.

  [60.]It had not seemed “inconclusive” to Vinson, supra at note 43; Frankfurter, supra at note 52; Jackson, supra at note 54; Clark, supra note 52; and probably not to Reed, Kluger 595–596, 680–692.

  [61.]347 U.S. at 489, 492. Brown told about Warren’s “unabashed and primary commitment to justice and his willingness to shape the law to achieve it.” Paul Murphy, The Constitution in Crisis Times, 1918–1969 312 (1972). For analysis of Warren’s opinion, see infra Chapter 13 at notes 56–61.

  [62.]As Graham, 269, stated, Brown v. Board of Education was “decided with scant reference to the historical rebriefings or to framers’ intent or original understanding. Rather, political and judicial ethics, social psychology—what the equal protection of the laws means, and must mean in our time, whatever it may have meant to whomsoever in 1866–1868—these were the grounds and the essence of Chief Justice Warren’s opinion.” “What it must mean in our time” is one way of saying that the Justices may revise the Constitution. Sumner did not rely on equal protection because he knew that many of the draftsmen would affirm “that they had never intended to outlaw segregation.” Supra note 40.

  [63.]Kluger 601.

  [64.]Id. 685. But compare Hamilton, infra Chapter 17 at note 15. Frankfurter’s pronouncement that the clearly expressed intention of the framers cannot be regarded as “a fixed formula,” cannot be “congealed,” is incompatible with his insistence that “very specific provisions” such as the prohibition of “bills of attainder” must be read as “defined by history.” Infra Chapter 21 at note 46. Why should an historical definition deserve more respect than the framers’ own explanation of their intention? Courts, Frankfurter had stated, “are not designed to be a good reflex of a democratic society.” Dennis v. United States, 341 U.S. 494, 525 (1951), concurring opinion.

  [65.]In “recalling that it is a Constitution ‘intended to endure for ages to come,’ ” Justice Black stated, “we also remember that the Founders wisely provided the means for that endurance: changes in the Constitution, when thought necessary, are to be proposed by Congress or conventions and ratified by the States. The Founders gave no such amending power to this Court.” Bell v. Maryland, 378 U.S. 226, 342 (1964). See infra Chapter 17 at notes 15–22.

  [66.]For 1866 see supra Chapter 1 at notes 36–46; for the present day, see infra Chapter 17 at note 55, and note 55.

  [67.]Kluger 688.

  [68.]Id. 710, emphasis added.

  [69.]Adkins v. Children’s Hospital, 261 U.S. 525, 570 (1923), dissenting opinion.

• Back to Top

  19: Magna Carta: An Historical Introduction

  Source: McKechnie’s introduction to Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).

  Accessed from oll.libertyfund.org/index.php?option=com_content&task=view&id=453&Itemid=284 on 2008/7/6