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Donald S Lutz - Colonial Origins of the American Constitution

Donald S Lutz - Colonial Origins of the American Constitution

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Published by Juan del Sur
A collection of eighty documents which demonstrate how local government in colonial America was the seedbed of American constitutionalism. Most of these documents, commencing with the Agreement of the Settlers at Exeter in New Hampshire, July 5, 1639, and concluding with Joseph Galloway’s Plan of Union, 1774—”the immediate precursor to the Articles of Confederation”—have never before been accessible to the general reader or available in a single volume.
A collection of eighty documents which demonstrate how local government in colonial America was the seedbed of American constitutionalism. Most of these documents, commencing with the Agreement of the Settlers at Exeter in New Hampshire, July 5, 1639, and concluding with Joseph Galloway’s Plan of Union, 1774—”the immediate precursor to the Articles of Confederation”—have never before been accessible to the general reader or available in a single volume.

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Published by: Juan del Sur on Apr 04, 2010
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07/18/2014

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Text taken from Shurtleff,Massachusetts Colonial Records: Vol.ii,194–98. Text is
complete, with the original spelling.

October 18, 1648

The following ordinance qualifies as a founding document because it creates and
describes the duties of elected officers of the legislature. Very little survives
concerning colonial legislative processes, so this document is doubly interesting
because it is the oldest surviving description of how a colonial legislature went about
its business. It is clear that the purpose of the ordinance is not only to maintain
orderly processes and systematic record keeping but also to ensure that legislative
proceedings and decisions are available to the public in a form that allows them to
remain informed. Earlier documents in this collection have clearly implied a de facto
popular sovereignty, and thus, the systematic keeping of public legislative records is
in keeping with that implication. Because colonial legislatures passed relatively few
laws by today’s standards and were quite small, they could easily conduct their
business without dividing into committees. Therefore it is noteworthy that the
Massachusetts legislature (General Court) was apparently already using a committee
system, especially since the British Parliament, with much larger concerns and a
much heavier legislative load, had moved to an intermittent committee system only a
few years earlier. The use of a committee system, however, also made the process
much more deliberative, and a deliberative decision making process was highly
valued in colonial America as a means of pursuing the consensual common good as
opposed to mere majority rule. The commitment to deliberative processes is reflected
in a variety of documents, but see documents 46 and 62 for more obvious examples.

For the better carrying on the occassions of the Generall Court, & to the end that the
records of the same, together with what shall be presented by way of petition, etc., or
passes by way of vote, either amongst the magistrates or deputies, may hereafter be
more exactly recorded, & kept for public use,—

It is hereby ordered, that as there is a secretary amongst the magistrates, (who is the
generall officer of the common wealth, for the keeping the publike records of the
same,) so there shall be a clarke amongst the deputies, to be chosen by them, from
time to time; that (by the Court of Elections, and then the officers to begin their
entryes, their recompence accordingly) there be provided, by the auditor, four large
paper books, in folio, bound up with velum & pastboard, two whereof to be delivered
to the secretary, & two to the clarke of the House of Deputies, one to be a journall to
each of them, the other for the faire entry of all lawes, acts, & orders, etc., that shall
passe the magistrates and deputies, that of the secretaries to be the publike record of
the country, that of the clarkes to be a book onely of coppies.

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That the secretary & clarke for the deputies shall briefly enter into their journals,
respectively, the title of all bills, orders, lawes, petitions, etc., which shal be presented
& read amongst them, what are referd to committees, & what are voted negatively or
affirmatively, & so for any addition or alteration.

That all bills, lawes, petitions, etc, which shal be last concluded amongst the
magistrates, shall remaine with the Governor till the latter end of that session, & such
as are last assented to by the deputies shall remaine with the speaker till the said time,
when the whole Courte shall meete together, or a committee of magistrates &
deputies, to consider what hath passed that session, where the secretary & clarke shall
be present, & by their journals call for such bils, etc, as hath passed either house, &
such as shall appeare to have passed the magistrates & deputies shall be delivered to
the secretary to record, who shall record the same within one month after every
session, which being done, the clarke of the deputies shall have liberty, for one month
after, to transcribe the same into his booke; & such bills, orders, etc, that hath onely
passed the magistrates, shall be delivered to the secretary to keepe upon file, & such
as have onely passed the deputies shal be delivered to their clarke to be kept upon file,
in like manner, or otherwise disposed of, as the whole Court shall appoint; that all
lawes, orders, & acts of Courte, contained in the ould bookes, that are of force, & not
ordered to be printed, be transcribed in some alphabeticall or methodicall way, by
direction of some committee that this Courte shall please to appoint, & delivered to
the secretary to record in the first place, in the said booke of records, & then the acts
of the other sessions in order accordingly, & a coppy of all to be transcribed by the
clarke of the deputies, as aforesaid.

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28

[Towns Of Wells, Gorgiana, And Piscataqua Form An
Independent Government]

Text is complete and taken from Kavenaugh,Foundations of Colonial America,1:
263–64.

July 1649

This document is typical of those written during the Cromwellian era, when the
interruption of the monarchy cast into doubt the continued legality of the charters
written earlier in the century and coherent instructions from England were not
forthcoming. While many colonies continued under their former organic documents,
other colonies like this one felt compelled to refound themselves. Unremarked in the
document itself but implied in the generic title, the document is notable for creating a
federation out of the three towns. Documents that created federal systems, among
others, include the General Laws and Liberties of New Hampshire, 1680 [2]; the
Pilgrim Code of Law, 1636 [20]; the Massachusetts Ordinance on the Legislature,
1644 [25]; the Organization of the Government of Rhode Island, 1642 [37]; the
Fundamental Orders of Connecticut, 1639 [43]; the Structure of Town Governments,
1639 [45]; and the New Haven Fundamentals, 1643 [50]. Again we see the de facto
use of an important American constitutional principle before there was a theoretical
grounding other than that found in theology—in this case covenant theology. The
three towns in this document later became part of the state of Maine, but during the
colonial era were claimed by Massachusetts.

Whereas the inhabitants of Piscataqua, Gorgiana, and Wells in the province of Maine,
have here begun to propogate and populate these parts of the country, did formerly by
power derivative from Sir Ferdinando Gorges, Knight, exercise the regulating the
affairs of the country as nigh as we could according to the laws of England, and such
other ordinances as was thought meet and requisite for the better regulating thereof.
Now, forasmuch as Sir Ferdinando Gorges is dead, the country by their general letters
sent to his heirs in June 1647 and 48, but by the said distractions in England no return
is yet come to hand, and command from the Parliament not to meddle in so much as
was granted to Mr. Rigley, most of the commissioners being departed the province,
the inhabitants are for present in some distraction about the regulating of the affairs of
these sites. For the better ordering whereof, till further order, power, and authority
shall come out of England, the inhabitants with one free and univeranimus consent do
bind themselves in a body politic, a combination to see these parts of the country and
province regulated according to such laws as formerly have been exercised and such
others as shall be thought meet, not repugnant to the fundamental laws of our native
country, and to make choice of such governor or governess and magistrates as by
most voices they shall think meet. Dated in Gorgiana, alias Accomenticus, the
[

] day of July 1649. The privileges of Accomenticus’ charter excepted.

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