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Colonial origins of the American Constitution : a documentary history
Lutz, Donald S.
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Indianapolis, IN : Liberty Fund, [1998]

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xl, 396 pages ; 24 cm
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"Local government in colonial America was the seedbed of American constitutionalism." So begins the introductory essay to this landmark collection of eighty documents created by the American colonists--and not English officials--that are the genesis of American fundamental law and constitutionalism. Most of these documents, commencing with the Agreement of the Settlers at Exeter in New Hampshire, July 5, 1639, and concluding with Joseph Galloway's Plan of Union, 1774--"the immediate precursor to the Articles of Confederation"--have never before been accessible to the general reader or available in a single volume. As Professor Lutz points out, the documents are chosen to make possible "a careful examination of [the American] people's attempt at self-interpretation." All of the principal colonial documents are included, as are all documents attempting to unite the colonies, beginning with the New England Confederation of 1643. Bicameralism, popular sovereignty, the separation of powers, checks and balances, limited government, and religious freedom--in sum, the hallmarks of American constitutionalism--were first presented to the world in these writings.

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

Table of Contents

Prefacep. xv
Introductory Essayp. xx
New Hampshire
Chapter 1 Agreement of the Settlers at Exeter in New Hampshire, July 5, 1639p. 3
The covenant that created Exeter's first town government
Chapter 2 General Laws and Liberties of New Hampshire, March 16, 1680p. 5
An apparent legal code for the province of New Hampshire that also lays out the government's institutions and powers
Chapter 3 Agreement Between the Settlers at New Plymouth (The Mayflower Compact), November 11, 1620p. 31
The oldest and most famous colonial political covenant
Chapter 4 Plymouth Oath of Allegiance and Fidelity, 1625p. 33
The oldest surviving citizenship oath-designed to bring post-1620 arrivals into the Mayflower Compact agreement
Chapter 5 The Salem Covenant of 1629p. 35
Another citizenship oath, but one that functioned for several years as the only basis for town government
Chapter 6 Agreement of the Massachusetts Bay Company at Cambridge, England, August 26, 1629p. 36
An equivalent to the Mayflower Compact but written by the colonists in England before they set sail
Chapter 7 The Watertown Covenant of July 30, 1630p. 38
Strictly speaking a church covenant, it is also a political covenant because the settlers were establishing a theocracy
Chapter 8 Massachusetts Election Agreement, May 18, 1631p. 40
The oldest colonial provision for a formal electoral process
Chapter 9 The Oath of a Freeman, or of a Man to Be Made Free, 1631p. 41
Until 1631 almost all freemen had been politically bound by the church covenant. This oath covered nonchurch members
Chapter 10 The Massachusetts Agreement on the Legislature, May 9, 1632p. 43
The first formal specification of Massachusetts political institutions and, although brief, still a protoconstitution
Chapter 11 Cambridge Agreement, December 24, 1632p. 45
Town meetings predated this document, but it is the oldest surviving agreement formally establishing the institution
Chapter 12 Dorchester Agreement, October 8, 1633p. 46
Establishes a town meeting and is the oldest document to create an elected council to run government between meetings
Chapter 13 Cambridge Agreement on a Town Council, February 3, 1634p. 48
An ordinance passed by the town meeting creating a town council
Chapter 14 Massachusetts Agreement on the Legislature, May 14, 1634p. 50
A revision of, and enlargement upon, The Massachusetts Agreement on the Legislature [10], which looked like a constitution and essentially functioned as one
Chapter 15 The Oath of a Freeman, May 14, 1634p. 52
Replacement for The Oath of a Freeman [9], which reflects an evolving sense of citizenship by not requiring church membership
Chapter 16 Salem Oath for Residents, April 1, 1634p. 54
An oath for noncitizen residents
Chapter 17 Watertown Agreement on Civil Officers, August 23, 1634p. 56
Ordinance establishing the town's first civil offices
Chapter 18 The Enlarged Salem Covenant of 1636p. 57
Much longer than the document it replaces, The Salem Covenant of 1629 [5], this covenant dwells on the values and commitments held in common
Chapter 19 Plymouth Agreement, November 15, 1636p. 60
A brief, powerful statement of popular sovereignty-inserted later into the Pilgrim Code of Law [20]
Chapter 20 Pilgrim Code of Law, November 15, 1636p. 61
Not really a code of law but a political covenant/compact that looks like and serves as a true constitution
Chapter 21 Dedham Covenant, 1636p. 68
The agreement that established Dedham's town government
Chapter 22 The Massachusetts Body of Liberties, December 1641p. 70
Important code of law that contains most of the rights in the U.S. Bill of Rights, at least eight of which originate here
Chapter 23 The Combination of the Inhabitants upon the Piscataqua River for Government, October 22, 1641p. 88
A political compact resting town government on popular sovereignty
Chapter 24 Massachusetts Bicameral Ordinance, March 7, 1644p. 90
The first explicit creation of a bicameral legislature
Chapter 25 Massachusetts Ordinance on the Legislature, November 13, 1644p. 92
An ordinance altering the size and mode of electing the legislature
Chapter 26 The Laws and Liberties of Massachusetts, 1647p. 95
A codification of earlier laws, this organic act also functioned as a constitution for the colony
Chapter 27 Massachusetts Ordinance on Legislative Procedure, October 18, 1648p. 136
The earliest formal specification of internal legislative procedures in the colonies
Chapter 28 Towns of Wells, Gorgiana, and Piscataqua Form an Independent Government, July 1649p. 139
Three towns in an area claimed by Massachusetts later to become Maine use a compact to create a joint government
Chapter 29 The Cambridge Agreement of October 4, 1652p. 141
The Cambridge town meeting lays out the basic values and principles that are to guide Cambridge's elected representatives
Chapter 30 Puritan Laws and Liberties, September 29, 1658p. 143
A revision of the Pilgrim Code of Law [20] and thus, in effect, an amending of the constitution of the Plymouth Colony
Chapter 31 An Act of the General Court, June 10, 1661p. 158
The basic principles of Massachusetts government and also an attempt to define the relationship between colony and king
Rhode Island
Chapter 32 Providence Agreement, August 20, 1637p. 161
A brief political compact resting on popular sovereignty, and the earliest colonial attempt to separate church and state
Chapter 33 Government of Pocasset, March 7, 1638p. 163
The political covenant that established the Pocasset town government
Chapter 34 Newport Agreement, April 28, 1639p. 165
A brief, general compact establishing town government on the basis of popular sovereignty
Chapter 35 The Government of Portsmouth, April 30, 1639p. 166
An unusual foundation document in that town government is grounded on an implicit civil covenant
Chapter 36 Plantation Agreement at Providence, August 27, 1640p. 168
A compact written and adopted by representatives specifically elected to design a system of government by arbitration
Chapter 37 Organization of the Government of Rhode Island, March 16-19, 1642p. 172
A compact that explicitly establishes a "Democracie," or "Popular Government," for the combined towns of Rhode Island
Chapter 38 Warwick Agreement, August 8, 1647p. 176
The representatives of Warwick establish town government on popular approval of a civil covenant sanctioned by the king
Chapter 39 Acts and Orders of 1647p. 178
This code of law also contains the institutional description that allows it to function as a constitution for the colony
Chapter 40 Charter of Providence, March 14, 1649p. 204
Providence is granted a charter for its government by the colony government at the request of the freemen
Chapter 41 General Assembly of Rhode Island Is Divided into Two Houses, March 27, 1666p. 207
The colony's legislature amends the Acts and Orders of 1647 to divide itself into two separate houses connecticut [39]
Chapter 42 Plantation Covenant at Quinnipiack, April 1638p. 209
An interim agreement which, after fourteen months, was replaced by the New Haven Fundamentals [50]
Chapter 43 Fundamental Orders of Connecticut, January 14, 1639p. 210
A constitution that defined Connecticut's political institutions as both a colony and a state until 1816
Chapter 44 Guilford Covenant, June 1, 1639p. 216
Written aboard ship, this covenant forms a people who agree to later create a government (see The Government of Guilford [49])
Chapter 45 Structure of Town Governments, October 10, 1639p. 217
A set of amendments that address the status of the Fundamental Orders of Connecticut [43] as a federal system
Chapter 46 Fundamental Articles of New Haven, June 4-14, 1639p. 221
A summary of basic political principles, with the discussion surrounding its adoption that reveals underlying reasoning
Chapter 47 Connecticut Oath of Fidelity, 1640p. 227
A citizenship oath that brought those who arrived after 1639 into the 1639 founding compact-the Fundamental Orders of Connecticut [43]
Chapter 48 Capitall Lawes of Connecticut, Established by the Generall Court the First of December, 1642p. 229
An ordinance that greatly reduces the number of reasons, compared with English common law, for using capital punishment
Chapter 49 The Government of Guilford, June 19, 1643p. 232
The detailed political covenant these colonists had agreed to establish in the Guilford Covenant [44]
Chapter 50 New Haven Fundamentals, October 27, 1643p. 235
The Constitution of New Haven that guided the colony as a federation of towns until it united with Connecticut in 1662
Chapter 51 Majority Vote of Deputies and Magistrates Required for the Passage of Laws in Connecticut, February 5, 1645p. 239
An amendment to the Fundamental Orders of Connecticut [43] clarifying the bicameral relationship
Chapter 52 Connecticut Code of Laws, 1650p. 241
This code serves as a bill of rights and as part of Connecticut's colonial constitution
Chapter 53 Preface to the General Laws and Liberties of Connecticut Colony Revised and Published by Order of the General Court Held at Hartford in October 1672p. 250
Designed to replace the code of laws passed before New Haven joined Connecticut (see Connecticut Code of Laws [52]), the preface shows that the code is considered to be part of the foundation covenant
Chapter 54 Division of the Connecticut General Assembly into Two Houses, October 13, 1698p. 253
A constitutional ordinance that officially established the bicameralism that had been implicit but imperfectly operative since 1639
New York
Chapter 55 A Letter from Governor Richard Nicolls to the Inhabitants of Long Island, February 1665p. 254
The order that established a representative legislature in New York
Chapter 56 Charter of Liberties and Privileges, October 30, 1683p. 256
A constitution and bill of rights adopted by the legislature
New Jersey
Chapter 57 Fundamentals of West New Jersey, 1681p. 263
A constitution adopted by the New Jersey legislature
Chapter 58 Concessions to the Province of Pennsylvania, 1681p. 266
An agreement that established the terms of settlement for Pennsylvania
Chapter 59 Charter of Liberties and Frame of Government of the Province of Pennsylvania in America, May 5, 1682p. 271
The first Pennsylvania constitution, including a bill of rights, with a preface laying out the principles underlying it
Chapter 60 An Act for Freedom of Conscience, December 7, 1682p. 287
Establishes freedom of conscience for all those who profess a minimal belief in God
Chapter 61 Pennsylvania Charter of Liberties, 1701p. 290
The Frame of Government (constitution) that replaced the 1696 frame and defined Pennsylvania government until 1776
Chapter 62 Orders Devised and Published by the House of Assembly to be Observed During the Assembly, February 25, 1638p. 297
Procedural rules governing the deliberative process in the legislature
Chapter 63 Act for Establishing the House of Assembly and the Laws to Be Made Therein, 1638p. 299
Political compact that formally established the Maryland legislature
Chapter 64 An Act for Church Liberties, 1638p. 302
One of the earliest statements on religious freedom, this compact extended that freedom to Catholics in Maryland
Chapter 65 An Act for Swearing Allegeance, 1638p. 303
A typical oath confirming English citizenship that together with the oath of a local political covenant expresses a dual citizenship in a de facto federal structure
Chapter 66 An Act What Persons Shall Be Called to Every General Assembly and an Act Concerning the Calling of General Assemblies, 1638p. 305
A temporary constitution that grounds political institutions on popular sovereignty-proposed by the Lord Proprietary and approved by the freemen gathered in a General Assembly
Chapter 67 An Act for the Liberties of the People, 1638p. 308
A brief, temporary bill of rights
Chapter 68 Maryland Toleration Act, April 21, 1649p. 309
Established the broadest definition of religious freedom in seventeenth-century colonial America until the establishment of Pennsylvania
Chapter 69 Articles, Laws, and Orders, Divine, Politic, and Martial for the Colony in Virginia, 1610-1611p. 314
Based on martial law rather than on consent and not in any sense covenantal, the first colonial code of law reflects the importance of religion to Virginia political culture
Chapter 70 Laws Enacted by the First General Assembly of Virginia, August 2-4, 1619p. 327
The first colonial political compact of any type, this code of law is also the first passed by a representative body
Chapter 71 Constitution for the Council and Assembly in Virginia, July 24, 1621p. 336
Formally establishes a bicameral legislature for Virginia
Chapter 72 Laws and Orders Concluded by the Virginia General Assembly, March 5, 1624p. 339
A major amendment to, and update of, Laws Enacted by the First General Assembly [70]
North Carolina
Chapter 73 Act Relating to the Biennial and Other Assemblies and Regulating Elections and Members in North Carolina, 1715p. 345
Formalizes the legislature and the electoral process for selecting representatives
South Carolina
Chapter 74 Act to Ascertain the Manner and Form of Electing Members to Represent the Province, 1721p. 350
A legislative act that defines the basis for representation in South Carolina and lays out a fair electoral process
Chapter 75 Act to Ascertain the Manner and Form of Electing Members to Represent the Inhabitants of This Province in the Commons House of Assembly, June 9, 1761p. 359
The first formal definition of the electoral process underlying representative government in Georgia. Confederations
Chapter 76 The New England Confederation, 1643p. 365
A true confederation and the first attempt to unite several colonies created by different charters
Chapter 77 The Albany Plan of Union, 1754p. 370
Although never ratified, the first serious attempt to unite all the colonies under a common compact
Chapter 78 The Articles of Confederation, November 15, 1777p. 376
The first U.S. Constitution-a compact that created a confederation
Appendix: Unadopted Colonial Plans of Unionp. 387
Chapter 79 William Penn's Plan of Union, February 8, 1697p. 389
The first proposal for uniting all the colonies under a general government
Chapter 80 Joseph Galloway's Plan of Union, 1774p. 391
The immediate precursor to the Articles of Confederation
Bibliographyp. 395