Colonial Origins of the American Constitution. Группа авторов

In the case of Connecticut and Rhode Island the colonial charters were formally readopted as constitutions—charters that had in these two instances been essentially written by the colonists. Massachusetts did not adopt or readopt anything in 1776 but continued to live under the 1725 charter as a continuous community. Examples of an organic act include The Laws and Liberties of Massachusetts (1647) [26], the Puritan Laws and Liberties (1658) [30], and the Connecticut Code of Laws (1650) [52].

      These organic acts are long and contain precise terms for limited categories of behavior. Various provisions, for example, might regulate behavior in church, activities after dark, or dealings with Indians. While highly legalistic, they are laws after all, they are not contracts for there are generally no provisions for reciprocal obligations. They are instead compacts because they are community-wide agreements on how to behave.

      We now have the basic characterizations for the analytic categories of religious covenant, civil covenant, mixed religious-civil covenant, compact, contract, and organic act. As was noted earlier, these terms were generally not used to describe colonial foundation documents, at least not by those writing them. It is necessary, therefore, to provide a brief characterization for each of the terms that were prominently used—agreement, combination, frame, fundamentals, ordinance, patent, charter, and constitution.

      An “agreement” in the formal, political sense referred to an arrangement between two or more persons as to a course of action, a mutual understanding, or a common goal. The term was usually used to describe a document that we would recognize as a covenant or compact. Indeed, documents frequently used the phrases “to agree,” “to compact,” and “to covenant” interchangeably in their internal wording. Treaties were sometimes termed agreements. While an agreement was legally binding on the parties making it, the term more properly implied a sense of harmony, or concord, that transcended a purely legal relationship. To refer to a treaty as an agreement meant at the very least there was no dissension, but it usually implied more—a level of mutual pleasure that approached atonement, whether in the sense of reconciliation or of propitiation. An agreement, then, at least during the period in question, was far more than a contract. It clearly suggested a relationship that moved beyond the letter of the agreement toward mutual support and pleasure, something close to the “knitting together” implied by a compact or the spirit of community carried by a covenant.

      A “combination” was viewed as a bringing together of two or more entities into a whole. The banding together, or union, of persons was usually for the prosecution of some common, broad objective. The term was often used interchangeably with agreement and compact and sometimes with alliance and treaty. As a legal term it had neither consistent nor widespread use, but American colonists were quite consistent in using it as the equivalent for agreement as just outlined. The document later to be known as the Mayflower Compact, which was clearly a covenant in form, was known to those who wrote it as the Plymouth Combination.

      During the era in question, a “frame” referred to an established order, plan, scheme, or system, especially of government. It strongly implied a definite form, regular procedure, order, and regularity. It also implied an adapted or adjusted condition in the sense of changing to take into account new factors or conditions affecting the older form, plan, or system, while not rejecting that older one. Thus, a frame tended not to be a document of initial founding as much as it was one of refounding and hence was similar to an organic act. Document 59 is one where “frame” is used in its title.

      The use of “fundamentals,” as in New Haven Fundamentals (1643) [50], implied the base upon which something is built. It was used primarily to refer to immaterial rather than physical things, and thus was used to describe leading principles, rules, laws, or articles that served as the groundwork for a political system. Such a statement of principles might be an addition to a covenant or compact, a preface to a frame or ordinance, or it might constitute the agreement itself.

      An “ordinance” usually referred to an authoritative command, although in a more restricted sense, narrower scope, and less permanent nature than a law or statute. The term was sometimes used to refer to the founding or instituting of something, but in the sense of making conformable to order, rule, or custom—as in placing or arranging in proper sequence or proper relative position. It would not be improper to view an ordinance as sometimes attempting to establish “orders” of people according to class, merit, ranking, status, importance, duties, or rights. As with fundamentals, political ordinances could be covenantal, compactual, contractual, or something else depending on the content. The words “ordain” and “order” were used as operative words in documents that legally produced an ordinance.

      A “patent,” as in letters-patent, had the root meaning of a public letter or document as opposed to a private one, usually from a sovereign or person in authority. It had a variety of uses—for example, to put on public record some contract; to command or authorize something to be done; or to confer some right, privilege, title, property, or office. A patent usually implied a monopoly of some sort, as in exclusiveness of use. Obviously a patent was related to a contract, but it was also related to a law in that it was handed down by some authority. It was unlike a contract in that it did not necessarily imply reciprocal duties but often simply recorded a grant with no duties assigned the grantee.

      The word “charter” is derived from the Latin word meaning a leaf of paper, a writing, a document. Often it was a legal document or deed written on a single piece of paper by which grants, cessions, contracts, and other transactions were confirmed or ratified. It was also used to refer to a written document delivered by the sovereign or legislature to grant privileges to, or recognize the rights of, an entire people, a certain class, or specific individuals. Magna Carta comes to mind here as an example because it recognized the rights of the nobility, vis à vis the king. In his Leviathan, Hobbes says that charters are not laws but exemptions from the laws, an idea that also fits in with the purpose of Magna Carta or other bills of rights. Charters were also used to grant pardon and to create or incorporate boroughs, universities, companies, or other corporations. They were a written instrument or contract applied especially to documents or deeds relating to the conveyance of property. The word “charter” was used as a linguistic alternative for privilege, immunity, or publicly conceded right. To say that something was “chartered” was to say that it was founded, privileged, or protected. Charters and letters-patent were similar, although the latter term was broader in that it could refer to any authoritative document. A charter was invariably a patent, while a patent was not necessarily a charter. “Charter” was also closely related to “contract” as a legal term because it effectively constituted a contract between the authority granting it and the person(s) to whom it was granted. Unlike a simple contract, however, a charter often included so many statements of a general nature that it transcended the notion of a contract. A contract, for example, would not be an appropriate description for a document that contains statements as broad and vague as “and the proprietors shall establish a government whereby differences among the planters may be settled.”

      Although rarely used to describe early colonial documents, the word “constitution” is worth discussing in order to compare its usage with some of the other terms we are examining. Related to the term “constituent,” which refers to that which makes a thing what it is in the sense of being formative, essential, characteristic, or distinctive, “constitution” is more immediately drawn from “constitute,” which means to establish, ordain, or appoint in the sense of providing legal form and status. The word “constitution,” properly speaking, referred to the action of making, establishing, decreeing, or ordaining something, usually in the sense of its having been made by a superior civil or ecclesiastical authority.

      Additionally, a constitution had been used historically to denote limitations. For example, the Constitutions of Clarendon in England, a set of propositions drawn up at the Council of Clarendon in 1164, defined the limits of civil and ecclesiastical jurisdiction. Used in this way it was similar to a charter as exemplified in Magna Carta. The term “constitution” had also been used to describe the mode in which a state was organized, especially as to the location of sovereign power as well as to describe the fundamental principles according to which a nation, state, or body politic was organized and governed. For example, there was the Declaration of the Estates of Scotland (1689): “Whereas King James the