Colonial Origins of the American Constitution. Группа авторов

Чтение книги онлайн.

СКАЧАТЬ 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 as they usually summarized and codified what the colonists of each state had evolved over the previous 150 years. 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 СКАЧАТЬ