Colonial Origins of the American Constitution. Группа авторов

by God. The formal agreement made and subscribed to by members of a congregational church in order to constitute themselves as a distinct religious community had God as the witness and securer of the agreement. A religious covenant thus was essentially an oath, and if it established a political community, political obligation was secured by the oath rather than by merely resting upon the fact of consent having been given. Note that both the civil and religious meanings of covenant were related in that each was characterized by being witnessed and therefore secured by the highest relevant authority. Presumably any compact with both God and the Crown as securer would be simultaneously a civil and religious covenant. A civil covenant would require the presence of the royal seal, while a religious covenant could be invoked merely through the internal use of an oath.

      Even with this restricted discussion two things become apparent. First, calling John Locke a “contract theorist” would have been considered a misnomer by colonial Americans. He was more properly a “compact theorist,” and in fact we find that his Second Treatise always uses the word “compact” and not “contract.” Second, the relationship between a covenant and a compact was a direct one. Both were based on the consent of those taking part. Both created a new community. Both implied a relationship that was stronger, deeper, and more comprehensive than that established by a contract. A compact, however, required simply the consent of those taking part, while a covenant required sanction by the highest relevant authority as well. In this regard, compact is the more modern of the two concepts, while covenant was the more natural term to use in a religious or a medieval context where the authority hierarchy was well defined and had a clear apex. A compact could be turned into a covenant merely by calling upon God to witness the agreement, which also turned consenting to the agreement into an oath. If a people found themselves in a situation where a mutual agreement had to be drawn up but it was not possible to obtain the royal seal in order to give the document legal status, the easiest solution for a religious people was to call upon God as a witness to bind those signing until the king’s legal sanction could be obtained. If, for some reason, a people reached a mutual agreement that was covenant-like but chose to call upon neither God nor the king, they must, for some reason, have considered themselves completely competent to establish the document’s legality. This last instance would be one in which legality was viewed as resting on the authority of the people, indicating an understanding of popular sovereignty. A compact was just such an agreement, one resting only on the consent of those participating. For this reason, Blackstone could say, “A compact is a promise proceeding from us, law is a command directed to us.”⁴ The fact that most of the early colonists were a religious people—a religious people primarily from Protestant religions who were experienced in forming their own communities and familiar with the covenant form for doing so—becomes an important part of the background to American constitutionalism. That these people were often thrown by circumstances into situations where they had to practice this skill of community building through covenants and that the charters under which they sailed often required that they provide for self-government, or at the very least permitted such activities, must be viewed as another historical circumstance of considerable importance for American constitutionalism.

      An agreement between God and his chosen people, then, was a covenant. The judicious Hooker refers to “Christ’s own compact solemnly made with his church.”⁵ While the covenant to which Hooker was referring was not the Jewish covenant, the Protestants writing the colonial documents in question viewed their work as equivalent to the Jewish biblical covenants. It was certainly equivalent in the sense that calling upon God to witness a civil union not only turned a compact into a covenant but also indicated an accord with the broader covenant in the Bible, between God and his chosen people. Giving one’s consent to join a civil community with this kind of covenant was in part an act of religious commitment, and elections to identify “the elect” among those in the civil community were also acts of consent with religious overtones.⁶

      Consent becomes the instrument for establishing authority in the community and for expressing the sovereignty of God. God transmits his sovereignty to the people through the broader covenant, and they in turn convey his sovereignty to the rulers on the basis of the specific covenant creating the civil community. The people’s consent is the instrument for linking God with those holding temporal authority, whose authority then is viewed as sanctioned by God. Because this temporal authority comes through the people, however, the rulers are beholden to God through the people and thus are immediately responsible to them. This, the original basis of popular sovereignty, had been independently developed by both Protestant and Catholic thinkers during the sixteenth and seventeenth centuries.⁷

      Given these characterizations, it can be seen that a covenant is simultaneously a compact as it contains everything essential to a compact. A compact, however, is not simultaneously a covenant because it lacks the explicit link with the higher authority even though the idea and form for a compact are derived from covenants, and the kind of community established is similar enough so that one could call a compact a near-covenant. Furthermore, there are circumstances in which an apparent compact is really a covenant in the complete sense. For example, suppose a people form a society under a covenant in either or both God’s and the king’s name. They then later form a government for this society in a document that does not mention any authority other than themselves as a people. Because the first document that formed them as a people also automatically establishes them as expressing the higher authority whenever they act through their own popular sovereignty, all subsequent documents by that people could be considered covenants as well because the link with the higher authority is understood. Nor is this implied covenant status always left for the reader of the document to infer. The Pilgrim Code of Law (1636) [20] is a good example. After establishing, in the first paragraph, the legal basis for holding the assembly that will write the Code, the first sentence in the second paragraph says: “Now being assembled according to the said order, and having read the combination made at Cape Cod the 11th of November 1620 ... as also our letters patents confirmed by the honorable council, his said Majesty established and granted the 13th of January 1629....” The combination of November 11, 1620, referred to here is, of course, what we now call the Mayflower Compact. The letters-patent refers to the charter from the king that was then in effect. The former document is a religious covenant, and the latter is a civil covenant. This sentence in the Pilgrim Code of Law serves a double function: first, of establishing the legal basis for their having the power to write such a Code; and second, of bringing the Code under the umbrella of the earlier covenants thereby making it an implied covenant.

      It is perfectly possible for a contract to be elevated to compact or covenant status. For example, the king could put his seal on a contract; perhaps charters come most easily to mind in this regard. Such a document, however, would imply quite a different kind of community from a simple covenant. Because all the details of the relationship would be spelled out, the result would be less a community in which the partners are required to go beyond the legally defined relationship to fully develop the relationship and more one in which the partners are minimally required to fulfill the obligations specifically mentioned. Such a contractually based compact, or covenant, would not be a true covenant as understood in the Jewish tradition and would become a target for legalistic wrangling over the meaning and intent of specific words and phrases. The emphasis on the letter rather than on the spirit of the agreement would destroy community as implied by covenant or compact and result in something less—an association for specific, limited ends. True covenants and compacts, without any contractual elements, are thus communitarian oriented, while contractual variants are inclined to be legalistic. One characteristic of contractual variants was the tendency for them to become longer and longer specifications that were more and more precise and limiting. This characteristic, however, should not be pushed too far as an identifying property of a contractual society because there is another, noncontractual, form of agreement that might resemble it superficially—an organic act.

      An “organic act” is one that codifies and celebrates an agreement or set of agreements made through the years by a community. In this way, a “common law” comprising legislative and judicial decisions made over a number of years can be codified, simplified, and celebrated in dramatic form, thereby also renewing the consent-based oath upon which obligation to the community rests. The early state constitutions adopted in 1776 could be viewed as organic acts as well as compacts