Colonial Origins of the American Constitution. Группа авторов

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СКАЧАТЬ 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 Seventh did by the advice of wicked and evil counsellors invade the fundamental constitution of the kingdom, and altered it from a limited monarchy to an arbitrary despotic power....”; or Lord Viscount Bolingbroke’s definition, “By Constitution we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions, and customs, derived from certain fixed principles of reason ... that compose the general system, according to which the community hath agreed to be governed.” ⁸

      In summary, we find the word “constitution” associated with making or establishing something, giving it legal status, describing the mode of organization, locating sovereignty, establishing limits, and describing fundamental principles. Not surprisingly, it was often used in association with charter, law, statute, ordinance, frame, and fundamentals. In our usage today “constitution” implies and incorporates at least part of all these other terms plus some of what we associate with compact. Although the usage of the word during the seventeenth century sounds familiar to our ears, the various components had not yet been brought together in any complete fashion. Also the term “constitution” was not used to refer to a specific document as we are inclined to do today. The English had developed the concept of a written constitution, but the writing was scattered over thousands of documents and no one was quite sure which documents should be included. When Americans finally brought all the elements together in a single document in 1776, the term “constitution” was to include far more than had been outlined by Bolingbroke. Indeed, the early state constitutions would derive their elements from agreements, compacts, and covenants as well as from frames, charters, fundamentals, and ordinances. The word “constitution” is not used in any of the documents duplicated in this volume, although the word “constitute” is used in several.

      Part 3

      ANALYTIC OVERVIEW

      Although one major purpose for publishing these foundation documents is to lead others to analyze them both individually and together, it is not inappropriate to initiate that analysis by presenting here some of the apparent developments that they embody. Let us briefly outline some of the things that a reading of these documents together leads us to conclude.

      1. Political covenants were derived in form and content from religious covenants used to found religious communities.

      2. A complete political covenant had the following elements: (a) an oath calling on God as a witness or partner; (b) the creation of a people whose members are identified by those who signed the covenant; (c) the creation of a civil body politic, or government; (d) the specification of the shared goals and values, a shared meaning, that defined (self-defined) the basis for the people living together; and (e) the creation and description of institutions for collective decision making.

      3. The political covenant form evolved rather quickly into the political compact form. A political compact is identical to a political covenant except for the absence of an oath in a compact. The elimination of the oath resulted in the force of the document, and therefore the basis of political obligation, resting entirely on the consent of those signing it. The move from political covenant to political compact is thus a shift to de facto popular sovereignty.

      4. The political compact eventually evolved into what we now recognize as the American form of constitutionalism. In this evolution, the first two compact elements—the creation of a people and of a government—become part of the American Constitution’s preamble or the first few provisions in the Bill of Rights; the self-definition element evolves into a bill of rights, although parts of the self-definition are often found as well in a preamble or introduction; and the description of institutions for collective decision making grows into the body of the constitution proper, which becomes the major part of the total political compact’s length. The early state constitutions, СКАЧАТЬ