From the agreements of the English guilds were copied the agreements under which were formed the independent Congregational churches.12 These again suggested the covenant made on the Mayflower when a deviation of the voyage brought the vessel toward a point without the boundaries covered by the Virginia charter and made a few restless spirits claim that each would have the right to be a law unto himself.13 This was the first written constitution framed by and for themselves by the people of a community. Ten years later the Constitution of the colony of Connecticut was adopted by the inhabitants of the three towns of Windsor, Hartford and Wethersfield in eleven orders.14 Unconstitutional Legislation, Appendix, pp. 370-382), the Privy Council held a colonial statute of Connecticut "null and void, being contrary to the laws of England in regard it makes lands of inheritance distributable as personal estates, and is not warranted by the charter of that colony." The Privy Council afterwards reversed this decision in Clark . Tousey (Brooks Adams, Emancipation of Massachusetts, p. 301). 12 Borgeaud's Rise of Modern Democracy in Old and New England, pp. 137, 138. 13 THE MAYFLOWER COMPACT. "In the name of God, Amen; We, whose names are underwritten, the loyall subjects of our dread soveraigne King James, by the grace of God, of Great Britaine, France, and Ireland King, defender, of the faith, etc., haveing undertaken, for the glorie of God, and advancemente of the Christian faith and honor of our king and countrie, a voyage to plant the first colonie in the Northerne parts of Virginia, doe, by these presents, solemnly and mutually, in the presence of God, and one of another, covenant and combine ourselves together into a civill body politick, for our better ordering and preservation and further ance of the ends aforesaid; and, by vertue heareof, to enacte, constitute, and frame, such just and equall laws, ordenances, acts, constitutions and offices, from time to time, as shall be thought most meete and convenient for the generall good of the Colonie. Unto which we promise all due submission and obedience. In witnes whereof we have hereunder subscribed our names, at Cap Codd, the 11th. of November, in the year of the raigne of our sovereigne lord, King James, of England, France, and Ireland the eighteenth, and of Scotland the fiftyfourth, Anno Domini, 1620." Preston's Documents Illustrative of American History, pp. 30, 31. A similar agreement was made by settlers of Rhode Island about 1637. (Arnold, History of Rhode Island, vol. i, pp. 103, 108.) An agreement in imitation of the Mayflower Contract, executed by the early settlers of Ohio, in 1802 is described in The Green Bag, vol. vii, p. 112. Much invaluable learning on the constitutional and institutional history of the different States may be found in the histories of the different State courts published in that periodical. The genius of John Lilburne took these proceedings for examples when, in 1648, to free England from the oppression of the Long Parliament he helped frame, and persuaded the army to support the Agreement of the People. The first scheme of a written constitution for a nation was the work of an English clothier and soap-boiler. The same man was the first who argued successfully in a court of justice, that a statute passed by a supreme legislature was void, because inconsistent with the fundamental laws.15 It is strange that the name of Allmighty God by the wise disposition of his diuyne pruidence so to Order and dispose of things that we the Inhabitants and Residents of Windsor, Harteford and Wethersfield are now cohabiting and dwelling in and vppon the River of Conectecotte and the lands thereunto adioyneing; And well knowing when a people are gathered togather the word of God requires that to mayntayne the peace and union of such a people there should be an orderly and decent Gouerment established according to God, to order and dispose of the affayres of the people at all seasons as occation shall require; doe therefore assotiate and conioyne our selues to be as one Publike state or Comonwealth; and doe, for our selues and our successors and such as shall be adioyned to us att any tyme hereafter, enter into Combination and Confederation togather, to mayntayne and presearue the liberty and purity of the gospell of our Lord Jesus wch we now presse, as also the disciplyne of the Churches, wch according to the truth of the said gospell is now practised amongst vs; As also in or Ciuell Affaires to be guided and gouerned according to such Lawes, Rules, Orders and decrees as shall be made, ordered & decreed, as followeth :". Of this, Judge Simeon E. Baldwin says in his essay on the Three Constitutions of Connecticut, Papers of New Haven Colony Historical Society, vol. v, p. 180: " Historians concede that the first written constitution of representative government, ordained by men, was agreed on by the inhabitants of the three towns of Windsor, Hartford and Wethersfield, 250 years ago. There had been before, agreements for the future organization of a body politic, like that signed on board of the Mayflower, in Plymouth Bay; there had been constitutional forms in the old world, rising gradually and successively into life; there had been speculative plans for Utopian republics, framed by philosophers; but never had a company of men deliberately met to frame a social compact, constituting a new and independent commonwealth, with definite officers, executive and legislative, and prescribed rules and modes of government, until the first planters of Connecticut came together for their great work on January 14th, 1638-9." Howell's State Trials, vol. v, pp. 443-444. See infra, Appendix, p. 59. 15 The claim that there were certain "fundamental laws" of England, which had peculiar sanctity and could not be abrogated was constantly set up during the conflict with Charles I, as well as during the Commonwealth. The first article of Strafford's impeachment charged "That he the said Thomas Earl of Lilburne is not placed by that of Hampden in the pages Strafford hath traitorously endeavoured to subvert the fundamental laws and government of the realms of England and Ireland, and instead thereof to introduce an arbitrary and tyrannical government against law; which he hath declared by traitorous words, councils, and actions; and by giving his majesty advice, by force of arms to compel his loyal subjects to submit thereto." (Howell's State Trials, vol. iii, p. 1185.) Similar language was used in the recitals of his bill of attainder. (Ibid., p. 1518.) In the debate on the bill, the poet Waller asked what were the fundamental laws. He was silenced by the reply of Sergeant Maynard, that, if he did not know that, he had no business to sit in the House. Gardiner's Fall of the Monarchy of Charles I, vol. ii, p. 140, citing D'Ewes's Diary, Harl. MSS. Lilburne continually claimed the protection of the "fundamental laws" against the arbitrary acts of the Rump Parliament. (See appendix to this chapter, infra, p. 54.) After its dissolution and the establishment of the Instrument of Government, Cromwell said: "In every Government there must be somewhat Fundamental, somewhat like a Magna Charta, which should be standing, be unalterable.".. "That Parliaments should not make themselves perpetual is a Fundamental. Of what assurance is a Law to prevent so great an evil, if it lie in the same Legislature to unlaw it again? Is such a law likely to be lasting? It will be a rope of sand; it will give no security; for the same men may unbuild what they have built." (Carlyle, Letters and Speeches of Oliver Cromwell, Part VIII, Speech III (12 Sept., 1654). Carlyle's Works, vol. xvii, p. 70.) In 1656 Sir Henry Vane, who had returned from Mas sachusetts with his mind soaked with "the New England idea," wrote a letter to Cromwell on The Healing Question. He declared that during the three years of the Protectorate there has been "great silence in heaven, as if God were pleased to stand still and be a looker-on to see what his people would make of it in England. And as God hath had the silent part, so man, and that good men, too, have had the active and busy part, and have, like themselves, made a great sound and noise, like the shout of a king in a mighty host." He said the time had come for a new arrangement, and recommended that "a restraint be laid upon the supreme power before it be erected in the form of a fundamental constitution." He considers how this "fundamental constitution" shall be established: The most natural way for which would seem to be by a general council or convention of faithful, honest, and discerning men, chosen for that purpose by the free consent of the whole body, by order from the present ruling power, considered as general of the army. Which convention is not properly to exercise the legislative power, but only to debate freely and agree upon the particulars that, by way of fundamental constitutions, shall be laid and inviolably observed, as the conditions upon which the whole body so represented doth consent to cast itself into a civil and politic incorporation. Which conditions so agreed will be without danger of being broken or departed from, considering of what it is they are conditions, and the nature of the convention wherein they are made, which is of the people represented in their highest state of sovereignty, as they have the sword in their hands unsubjected unto the honoring the pioneers of the paths toward constitutional liberty.16 Although Cromwell broke his pledge to support the Agreement of the People, four years later, on the dissolution of the Barebones Parliament, he set in force the Instrument of Government, the first written constitution of a nation which was established.17 This failed, however, from its want of popular origin. The first Parliament chosen under it refused to acknowledge its superiority. Cromwell feared to submit the dispute to the courts, and ordered a dissolution. The representatives yielded, although claiming that he had transgressed the Instrument.18 The second Parliament modified the scheme with his consent, and within four years from its promulgation all pretence of obedience to the Instrument was abandoned.19 At the outbreak of the Revolution the colonists governed themselves through provincial governments, the executives of which rules of civil government, but what themselves, orderly assembled for that purpose, do think fit to make. And the sword upon these conditions subjecting itself to the supreme judicature thus to be set up, how suddenly might harmony, righteousness, love, peace, and safety unto the whole body follow hereupon, as the happy fruit of such a settlement, if the Lord have any delight to be amongst us!" 16 The first, if not the only, writer who shows any adequate appreciation of the services of Lilburne is Professor Charles Borgeaud of the University of Geneva, Switzerland, in The Rise of Modern Democracy in Old and New England. Even he does not mention Lilburne's second trial, which contains the first successful argument against the validity of a statute ever made in a court of justice. The writer of this work has added a sketch of Lilburne's life in an appendix to this chapter, infra, p. 46. 17 It is reprinted in Gardiner's Constitutional Documents of the Puritan Revolution, p. 314. This was " voted by a council of officers, December 16, 1653. It is said by Hume to have been drawn by Lambert in four days (Hume's History of England, ch. lxi). Like the agreements of the people it provided for the periodical election of parliaments and set limits to the legislative authority in favor of Protestant religious liberty and for the security of the public debt. It did not, however, like the former, guarantee personal liberty. 66 By 18 Gardiner's Documents of the Puritan Revolution, pp. lx-lxiii. the Instrument of Government (xxii, ibid., p. 320), parliaments could not be adjourned, prorogued, or dissolved without their own consent during the first three months of their sitting." Cromwell construed this as meaning lunar months of twenty-eight days, which was the mode of computing the pay of the army and navy; and dissolved the parliament before the end of three calendar months (Hume, History of England, ch. lxi). 19 Gardiner's Documents, pp. lxiiilxiv. were known as committees of safety, a name borrowed from the junto of officers who ruled England after the dissolution of the Rump Parliament.20 Even before the Declaration of Independence, the Continental Congress recommended the colonies, in response to the request of some of them, "to call a full and free representation of the people, to establish such a form of government as in their judgment will best promote the happiness of the people and most effectually secure good order in the province during the continuance of the present dispute between Great Britain and the colonies." 21 The first State constitutions were naturally formed in imitation of the frames of government which had been created by and under their charters. Two of the colonies, Connecticut and Rhode Island, continued to use their charters without any change of name, Rhode Island till 1842, Connecticut till 1818. The powers of the executive, legislative and judiciary were still kept distinct. The office and name of governor-except in Pennsylvania and New Hampshire, where the chief executive was called a president, were retained with a provision for his election by the people or the legislature and with a deprivation of those powers which had been most obnoxious in colonial times. The previous existence of a council and assembly made the step to a creation of two legislative houses natural. The council was usually changed into a senate; 22 and the lower house retained its old name and functions. Two States, however, Pennsylvania and Georgia, besides Vermont, which was not yet recognized, had but a single house. But Pennsylvania had an anomalous and unsatisfactory check on its lower house by a body of censors; executive councils were retained for a while in Pennsylvania, Vermont, Georgia, and Virginia; and Massachusetts has kept till the present day a governor's council as a check on the powers of the executive, besides the senate as a check upon the house of representatives. 20 This English committee is described in Hume's History of England, ch. lxii. The same name was adopted during the French Revolution. 21 This was the recommendation to New Hampshire, South Carolina and Virginia in 1775. Journals I, 231, 235, 279. 22 In Maryland, Massachusetts, New Hampshire, New York, North Carolina, South Carolina, and Virginia, the upper house was called "The Senate," in Delaware, "The Council," in New Jersey, "The Legislative Couneil." |