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  • The Lost Constitution

    Posted by Mitch Townsend on July 11th, 2006 (All posts by )

    [Update: I have been working on this for quite a while, but after having posted it, I was disturbed to see that I had bumped down Lex’s post about the horrible bombings in Mumbai. I have friends from there, and they have people they love there. I can only hope they were spared. God bless India. May St. Thomas watch over the people he loved.]

    I am still trying to organize what I’m finding out about early Anglospheric political thought, and while I’m more confused than when I started, I came across some early evidence of republican social contract thinking in America. In 1638, John Locke was only five years old. In May of that year, Rev. Thomas Hooker preached a sermon at the town he and others had recently founded: Hartford, Connecticut. The text of the sermon has been lost. The only surviving record is the notes taken by Henry Wolcott:

    text Deuteronomy I 13 choose you wise men and understanding and known among your tribes and I will make them heads over you captains over thousands captains over hundreds 50 10

    doctrine that the choice of public magistrates belongs unto the people by Gods own allowance

    2 doctrine the privilege of election which belongs to the people it must not be exercised according to their humors but according to the blessed will and law of God

    3 doctrine they who have power to appoint officers and magistrates it is in their power also to set the grounds and limits of the power and places unto which they may call them

    1st of I – I reason because the foundation of authority is laid firstly in the free consent of people

    2 – reason because by a free choice the hearts of the people will be more enlarged to the love of the person and more ready to yield obedience

    3 – reason because of that duty and engagement of the people

    Source: Connecticut History on the Web – Colony Readings (scroll down near end, no in-page anchors)


    The ideas expressed were incorporated a few months later in the Fundamental Orders of Connecticut. This was a remarkable document (not for style or rhetorical flourishes – it is as dry as a mummy’s throat) in itself, calling for a form of election by secret ballot and not requiring church membership as a qualification for voting. Most remarkably, it established for the first time the relationship between the people and the government they established as a voluntary contractual arrangement. The preamble to this document prefigures the preamble to the United States Constitution:

    [T]o maintain the peace and union of such a people there should be an orderly and decent Government established according to God, to order and dispose of the affairs of the people at all seasons as occasion shall require; [We} do therefore associate and conjoin ourselves to be as one Public State or Commonwealth; and do for ourselves and our successors and such as shall be adjoined to us at any time hereafter, enter into Combination and Confederation together, to maintain and preserve the liberty and purity of the Gospel of our Lord Jesus which we now profess, as also, the discipline of the Churches, which according to the truth of the said Gospel is now practiced amongst us; as also in our civil affairs to be guided and governed according to such Laws, Rules, Orders and Decrees as shall be made, ordered, and decreed…

    This was before Locke wrote; before the English Civil War. They may have been marginal ideas, but republican democracy was in the thoughts of Americans and Englishmen.

    More information:
    Short biography of Rev. Hooker
    The Political Ideas of the Puritans, part I

     

    9 Responses to “The Lost Constitution”

    1. Lex Says:

      “…before Locke wrote; before the English Civil War. They may have been marginal ideas, but republican democracy was in the air.”

      Mitch, I think you are getting at least one thing a little bit askew. What was in the air, that preceded Locke, and the Civil War and republican democracy, was the older notion of the “ancient constitution” and the “liberties of Englishmen” embodied in the common law, all of this deriving over time from Medieval constitutionalism. The reason you are having trouble finding a starting point is that the starting point is lost in the mists of time. The English, then Anglo-American approach to law and government are the survivors and descendants of what had once been a more universal understanding in the West. Locke was a compiler of pre-existing ideas far, or a systematizer of existing understandings, far more than he was an originator.

      Take a look at F.W. Maitland, The Constitutional History of England. He starts with the Saxons.

    2. Jim Bennett Says:

      Actually, these were not marginal ideas, although the Puritan rhetoric that they are wrapped in was a relatively recent development. What you are seeing here was the adaptation of medieval constitutionalism to the new environment and the new phase of history that was opening. However, much of English society was organized, and had been organized for centuries, into various sorts of self-governing, compact-regulated communities and companies — villages governed by elected aldermen, cities governed by councillors, guilds governed by assemblies, militia companies (and privateering ships) that elected their own officers. Much of northern Europe had been like this, but by the seventeenth century many of the forms had been suppressed by centralizing military bureaucracies. They survived on the peripheries — the Netherlands, Switzerland, parts of Scandinavia — and of course England and Scotland. Anywhere that big armies and cavalry couldn’t easily march into.

      In England, there was also the factor that English colonists had been sending out companies of colonists to Wales and Ireland for centuries, usually having negotiated a royal charter giving them the right to self-government, and where they would found towns and counties. The English were practicing a sort of arbitrage in agricultural technology, where they would import Northern European high-productivity agriculture into areas that could not be productively exploited by the Celtic technologies.
      Thus the English had very familiar forms for organizing and sending colonies into new lands and setting up self-governing communities. Both the Virginia colonies and Plymouth and Massachusetts Bay colonies were formed by companies of these sorts, and had self-governing assemblies very early on. But these were not innovations.

      Contrast to the Dutch, who had elaborate forms of self-government at home (very similar to the English forms) but who stumbled badly both in New Amsterdam and South Africa, and suffered endless problems because of their inability to clone self-governing commmunities overseas.

      These concepts of self-government are very old — you can read Montesquieu on the survival of Germanic tribal forms into the Middle Ages, (he was writing just as the last remnants of them in France were being suppressed) and he quotes Tacitus on the self-governing assemblies of the Germanic tribes in Roman times.

      So Locke was not inventing — he was creating a theoretical explanation for something that the English had long been familiar with in practice.

    3. Lex Says:

      Looks like Bennett and I were typing at the same time.

      Following up on what he said, Helen Cam has in one of her books how the villages of England had self-government and corporate rights and duties back into Saxon times. These were not novel ideas.

      Also, the people forming colonies, as Jim notes, had a whole “kit” to draw on. Similarly, the English had companies of “merchant adventurers” composed of similar groups of co-venturers who had democratic-type selection of leadership, etc.

    4. Lex Says:

      No problem about the Mumbai post. Everybody has heard about it by now.

      But we’ll leave the flags up for a while.

    5. Jim Bennett Says:

      Some of the differences between American and Westminster constitutionalism, in fact, come from the fact that the American colony charters were based more on merchant-adventurer company practice, as opposed to the Parliamentary form.

    6. Lex Says:

      As it happens, the book I was looking at just before making these comments is Sources of the Constitution of the United States, Considered in Relation to Colonial and English History, C. Ellis Stevens (1894). Stevens notes, regarding the Dutch “Originally colonized by the Dutch, New York and New Jersey did not pass into English hands until 1664. Singularly, however, the Dutch occupation left very little permanent result of a constitutional character.” He cites to an earlier work, Landon, Constitutional History of the United States, for the statement that “The Dutch did not trouble themselves much about forms of government.” This is wholly consistent with Bennett’s observation.

      (Interestingly, the Landon book is not online, or not such that a quick google search turns it up, but this contemporary book review is available.)

      In other words, one reason that the many other groups that settled here did not come to predominate in our political self-ordering is that the English had already developed an expertise in transplanting governments.

    7. Mitch Says:

      The part that impresses me, though, is the explicit “social contract” aspect of it. As for the anti-monarchial parts of it, these were people who knew their Bible front to back, and not all of it was favorable to the “divine right of kings.”

      1 Samuel VIII:

      4 Then all the elders of Israel gathered themselves together, and came to Samuel unto Ramah,
      5 And said unto him, Behold, thou art old, and thy sons walk not in thy ways: now make us a king to judge us like all the nations.
      6 But the thing displeased Samuel, when they said, Give us a king to judge us. And Samuel prayed unto the LORD.
      7 And the LORD said unto Samuel, Hearken unto the voice of the people in all that they say unto thee: for they have not rejected thee, but they have rejected me, that I should not reign over them.
      8 According to all the works which they have done since the day that I brought them up out of Egypt even unto this day, wherewith they have forsaken me, and served other gods, so do they also unto thee.
      9 Now therefore hearken unto their voice: howbeit yet protest solemnly unto them, and shew them the manner of the king that shall reign over them.
      10 And Samuel told all the words of the LORD unto the people that asked of him a king.
      11 And he said, This will be the manner of the king that shall reign over you: He will take your sons, and appoint them for himself, for his chariots, and to be his horsemen; and some shall run before his chariots.
      12 And he will appoint him captains over thousands, and captains over fifties; and will set them to ear his ground, and to reap his harvest, and to make his instruments of war, and instruments of his chariots.
      13 And he will take your daughters to be confectionaries, and to be cooks, and to be bakers.
      14 And he will take your fields, and your vineyards, and your oliveyards, even the best of them, and give them to his servants.
      15 And he will take the tenth of your seed, and of your vineyards, and give to his officers, and to his servants.
      16 And he will take your menservants, and your maidservants, and your goodliest young men, and your asses, and put them to his work.
      17 He will take the tenth of your sheep: and ye shall be his servants.
      18 And ye shall cry out in that day because of your king which ye shall have chosen you; and the LORD will not hear you in that day.
      19 Nevertheless the people refused to obey the voice of Samuel; and they said, Nay; but we will have a king over us;
      20 That we also may be like all the nations; and that our king may judge us, and go out before us, and fight our battles.
      21 And Samuel heard all the words of the people, and he rehearsed them in the ears of the LORD.
      22 And the LORD said to Samuel, Hearken unto their voice, and make them a king. And Samuel said unto the men of Israel, Go ye every man unto his city.

      Vox populi, vox dei doesn’t get much clearer. Not only was a king something not especially something agreeable to the Lord, but a king was only established because the people demanded one. A judge (or “magistrate,” in the Connecticut document) was His first choice.

    8. Lex Says:

      The English never accepted the “Divine Right of Kings”. That was absolutely not the medieval notiona of kingship. The “divine right” was an idea that was based on the revived Roman Law, not the English common law, which retained the older idea that the King was UNDER the law. And, as you note, this is a more biblical notion of kingship. Helen Szameuly tells me that the guy to read on the Divine Right of Kings is John Neville Figgis. I have recently read his Political Thought from Gerson to Grotius: 14141625, without professing to understand most of it.

      Also, the biblical passage shows that the original notion of kingship was based on leadership of the armed people for defense or conquest. Otherwise, the people are dispersed and have no need of over-arching government. But, as the Hebrews were, when they are beset by powerful neighbors, they are forced to accept the hard yoke of rule by a king, to prevent utter defeat at the hands of foreigners — a fate the Hebrews ultimately did suffer, repeatedly.

    9. Jim Bennett Says:

      Yes, the passage from Samuel is a great summary of the passage from a tribal kritarchy (rule by “judges”) to an early state formation. Somalia, BTW, is an example of a society still in kritarchy. Nobody would do it except under military neccesity.

      That passage was the key to theological republicanism under the Puritans and later in New England during the American Revolution. One of the disconnects in the early American republic was that New Englanders were thological republicans and looked back to the English Commonwealth as a model; Middle States and Southerners did not share this theology, and looked to classical republicanism as a model, and related more to the Revolution of 1688 as their ideal. That’s why we got all the Roman trappings like a “Senate” and the Roman architecture in Washington, DC.