Colonial Origins of the American Constitution. Группа авторов

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СКАЧАТЬ influences. The extent to which there was appropriation of English common law and foundational ideas by the colonists will be apparent in the documents written on this side of the Atlantic.

      The third decision rule was to include documents that were in fact foundational. Political systems are not founded by judicial decisions or executive actions, so colonial case law and executive directives were excluded. Too often constitutionalism is viewed merely legalistically, whereas legalism is the result of constitutionalism and not the other way around. Foundational documents by definition create institutions and decision processes that did not exist before; or else they establish fundamental laws that give direction to what legislatures, executives, and courts later do, although these fundamental laws do not determine the actual form or content of later political decisions.

      Finally, a document was included only if it had been publicly adopted by the entire relevant community through the consent-giving process in use by that community. This decision rule thus excluded political essays and tracts no matter how important or influential they might have been at the time. Often adoption resulted from legislative action whereby the legislature was conscious of acting in a foundational capacity. Usually these legislative actions amounted to amending the existing constitutional order at a time when a formal amendment process that directly involved the people had not yet been invented.

      Even with these decision rules to narrow the eligible documents, some further exclusions were necessary. Some documents were too long and largely redundant in their content. So, for example, Connecticut had multiple codes of law adopted during the 1600s, but they largely reiterated the first law with minor variations, and including them served no real purpose other than to lengthen the book. The result is a collection of foundation documents from the colonial era that provides the basic information needed by any reader to understand the process of differentiation described by Voegelin.

      Having established, therefore, at least in a preliminary way, the common threads running among them, these documents are presented here so that others may become familiar with, and advance our understanding of, their contents. There is much for us to learn. The Pilgrim Code of Law (1636), for example, is probably the first true written constitution in the English language; and if it is not, the Fundamental Orders of Connecticut (1639) most certainly is. Covenants, compacts, and citizenship oaths are prominent among our earliest documents. Those writing on political obligation have been quite taken with John Locke; however, in this collection we have people solving the problem of political obligation in a modern context even before Locke was born. The concepts of equality, popular sovereignty, majority rule, representation, and constitutionalism are a few of those whose meaning and origins can be illuminated by reference to these documents. Until now most of the documents have been lost to public view, and the few studied in depth have been studied in isolation. It is hoped that the publication of this volume will help achieve at least two ends: first, that the early documents in our political tradition will become well known to students of American politics; and second, that we will learn to read these documents together rather than separately.

      The careful and attentive reader should begin with the understanding that the collection of documents presented here is not a book of readings. It is the foundation story of a people, told by themselves.

      This volume is an altered and corrected version of a book originally published in 1986 under the title Documents of Political Foundation by Colonial Americans. The author wishes to thank Transaction Press for permission to reproduce whatever may overlap in that earlier book. The introductory essay for that volume has been significantly shortened and revised for this version, the headnotes to each document are completely new as well as lengthier and more detailed with respect to constitutional precedence, and the ordering of the documents has been radically altered. Also, seven documents from that earlier book have been dropped, and twelve completely new documents have been added. Finally, the documents themselves are in the public domain and have been corrected for any errors that may have crept into the earlier volume. In each case, the documents in this book have been carefully compared with their respective earliest surviving versions.

Introductory Essay

      Part 1

      FROM COVENANT TO CONSTITUTION

      Local government in colonial America was the seedbed of American constitutionalism—a simple fact insufficiently appreciated by those writing in American political theory. Evidence for neglect can be found simply by examining any book dealing with American constitutional history and noting the absence of references to colonial documents written by Americans. Rather, at best there will be brief references to Magna Carta, perhaps the English Constitution, and probably the Declaration of Independence. If the authors of these books discuss the source of American constitutional theory beyond these few documents, they will almost inevitably mention European thinkers, John Locke being prominent among them. It is the purpose of this volume to end such neglect and reverse such attitudes.

      Work by historians during the Bicentennial has pointed us in the direction of reexamining the colonial roots of our political system, but the implications of this work have not been absorbed by political scientists.¹ Furthermore, historians are not inclined to put their questions in such a way as to lead to the comprehensive examination of colonial documents of political foundation. Intellectual historians almost immediately look to Europe and the broader Western tradition when seeking the roots of constitutionalism for the simple reason that a profound constitutional tradition is there to examine. There has also been a tendency to view the American Revolution as the fundamental watershed in American history, closely followed by the Civil War. This outlook introduces an unavoidable sense of discontinuity in American thinking and affairs. Rather than suggest that the perception of such discontinuities should be rejected, it is instead argued here that we should look for continuities as well. One fundamental continuity to be found runs from the earliest colonial documents of foundation to the written constitutions of the 1770s and 1780s. We should look to our own shores as well when seeking a constitutional tradition for America.

      One important caveat must be mentioned. This author has argued elsewhere that there are two constitutional traditions running through colonial documents.² The first tradition can be found in the charters, letters-patent, and instructions for the colonists written in England. In certain respects, the United States Constitution favors this tradition. The second tradition is found in the covenants, compacts, agreements, ordinances, codes, and oaths written by the colonists themselves. While the U.S. Constitution embodies aspects of this tradition as well, it is in the early state constitutions that we find the full flowering of this second tradition.

      These traditions, while in certain respects distinct, also interpenetrate each other. Most of the early colonial charters allow the colonists to design their own political institutions and practice self-government, and most of those charters that did not so provide explicitly at least permitted the colonists to fill in the blanks themselves. Charter revisions and colonial document writing took each other into account, and often one was the result of the other. Nevertheless, it needs to be emphasized that the former set of documents was handed down to, or imposed on, the colonists, while the second set was written by the colonists themselves.

      The two traditions were blended to produce a constitutional perspective uniquely American. The fact that American colonists were invariably here as the result of a written charter that could be amended led to their becoming used to having a written document defining the context of their politics and having a document that could be altered through some political process. The English had a written constitution, but it was composed of the vast corpus of common law and legislative ordinance. English colonists in America became familiar with the idea of a single document being the focus of their link with that vast corpus.

      At the same time, English colonists in America became used to writing their own documents to flesh out the particulars of their governments. This was partly the result of СКАЧАТЬ