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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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The complete text, with original spelling, is from Browne,Archives of Maryland: Vol.
i,
40–41.

1638

The problem of political obligation was handily solved in this era not by some formal
theory of consent but rather by the expedient of having all inhabitants take an oath if
they wished to remain inhabitants. Colonists were supposedly required to take an
oath of fidelity to the king of England, a requirement that engendered some
controversy among the colonists. The source of the controversy lay not in swearing
allegiance to the king but in the genesis of such oaths, which were instituted
originally to recognize the monarch as head of the Church. The Catholics in
Maryland were no less hesitant about such matters than the radical Protestant
dissenters in New England, who had left England primarily to escape the established
Church. This oath should be compared with those contained in documents 4, 9, 15,
and 47. Comparison with oaths internal to longer documents, such as the Pilgrim
Code of Law [20], should also prove instructive.

Be it Enacted and ordeined by the Lord Proprietarie of this Province by and with the
Consent and approbation of the ffreemen of the same that all and every person or
persons of the age of eighteen years and upwards Inhabitants or that Shall come
hereafter to Inhabite within this Province shall within one month next after this
present Assembly shall be dissolved or within one month after such person or persons
shall land or come into this Province take an oath to our Soveraigne Lord King
Charles his heirs and Successors in these words following (I: A B doe truly
acknowledge professe testifie and declare in my concience before God and the World
that our Soveraigne Lord King Charles is lawfull and rightfull King of England and of
all other his Majesties Dominions and Countries and I will bear true faith and
allegeance to his Majestie his heirs and lawfull Successors and him and them will
defend to the uttermost of my power against all conspiracies and such attempts
whatsoever which shall be made against his or their Crowne or dignity and shall and
will doe my best endeavour to disclose and make known to his Majestie his heirs and
lawfull Successors all Treasons and traiterous consperacies which I shall know or
heare to be intended against his Majestie his heirs and lawfull Successors And I doe
make this recognition and acknowledgement heartily willingly and truely upon the
faith of a Christian So help me God) And Be it further Enacted By the authority
aforesaid that if any person or persons to whom the Said oaths Shall be tendred by
Virtue of this present act Shall willfully refuse to take the same that then Upon such
tender and refusall the said person or persons so refuseing to take the said Oath shall
be imprisoned till the next County Court or hundred Court of Kent and if at such
Court such partie shall upon the Second tender refuse again to take the said oath the

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partie or parties so refuseing shall forfeit and lose all his Lands goods and Chattells
within this Province to the Lord Proprietarie and his heirs and Shall be banished the
said Province for ever (except women covert who Shall be committed only to prison
untill such time as they will take the same oath).

To which end Be it further Enacted by the authority aforesaid that the Lieutent
Generall or other officer Governour or Governours (for the time being) of this
Province or two of the Councill or the Secretary of the Province for the time being or
any Judge sitting in Court or the Commander of the Isle of Kent for persons being or
that Shall be in the Ile of Kent Shall have full power to administer the said oath in
manner aforesaid according to the intention of this present act This Act to continue till
the end of the next assembly

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An Act What Persons Shall Be Called To Every General
Assembly And An Act Concerning The Calling Of General
Assemblies

The text, complete and with the original spelling, is taken from Browne,Archives of
Maryland: Vol.i,
74–75.

1638

This simple act comes close to defining the entire form of government in Maryland at
the time. The nature and role of the legislature, the process of elections, the definition
of the suffrage, the process of passing legislation—all are established here. The result
is one of the earliest representative assemblies to be established in America, although
as of 1638 the legislature was still essentially a rubber stamp for the proprietor’s
appointed colonial representative, titled the Lieutenant General. For further
discussion of the significance and historical context of this document, see the
comments on Act for Establishing the House of Assembly [63].

Be it enacted by the Lord Proprietary of this province, of and with the advice and
approbation of the freemen of the same, that, from henceforth, everyone being of the
council of this province and any other gentlemen of able judgment and quality
summoned by writ and the lord of every manor within this province after manors be
erected shall or may have his voice, seat, and place in every General Assembly to be
hereafter called in this province and shall be called by summons or writ unto the
same. And also be it further enacted, by the authority aforesaid, that, from henceforth
forever, after such time that any summons or writ shall issue for the calling or
summoning a General Assembly of the freemen of this province, the commander or,
in defect of a commander, the high constable of every hundred within this province
or, in defect of a constable, the sheriff of the county, shall within every hundred
summon all the freemen inhabiting within every hundred, as soon as conveniently
may be, to assemble at a certain place and time to be by him appointed and prefixed.
Which freemen so assembled, or the major part of them, shall elect and chose some
one, two, or more able and sufficient men for the hundred, as the said freemen or the
major part of them so assembled shall think good, to come to every such General
Assembly at the time and place in such writ or summons limited and appointed, then
and there, for him or themselves and all the freemen of the hundred and in their names
and stead, to consult concerning the affairs of this province; and shall make a return in
writing of the name or names of the persons so to be from time to time elected and
chosen, and such person and persons so to be from time to time elected and chosen
shall and may have a voice, place, and seat in every such General Assembly. And
from henceforth such person or persons only so elected and chosen out of and for
every hundred within this province, and such persons as shall be personally called by
writ as afore, shall have a place, voice, and seat in all or any General Assembly

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hereafter to be held within this province. And every art and ordinance made in such
General Assemblies by persons so called, elected, and chosen as aforsaid, or the major
part of them, and assented to by the Lord Proprietary or his heirs, lords and
proprietaries of this province, or by his or their lieutenant-general thereunto
authorized by special warrant from the said Lord Proprietary or his heirs, shall be
judged, deemed, and taken to be of as good force and strength and as effectual to all
intents and purposes as if the Lord Proprietary himself and all the freemen within the
said province had been personally present at such General Assemblies and had
consented to and approved of the making and enacting of such laws and ordinances.
Provided, that all acts approved by the freemen and by the Lieutenant-General in the
name of the Lord Proprietary, as aforesaid, shall be of force until the Lord Proprietary
shall signify his disassent to the same under the great seal, and no further or longer.

An Act Concerning The Calling Of General Assemblies, 1638

Be it enacted by the Lord Proprietary of this province, of and with the assent and
approbation of the freemen of the same, that from and after this General Assembly
shall be dissolved, a General Assembly of the freemen of this province shall be called
and summoned once in every three years at the least to consult of the affairs and
public good of this province and for the enacting of laws and ordinances for the better
government of the same. And that the said freemen so assembled shall, from and after
the summoning of such assembly and assemblies until the dissolution of the same,
have the like power, privileges, authority, and jurisdiction in all causes and matters
arising or to arise or happen within this province as the House of Commons within the
realm of England at any time heretofore assembled in that kingdom have had, used, or
enjoyed or of right ought to have, use, or enjoy in, about, or concerning any matters,
things, and causes whatsoever which have at any time happened or risen within the
realm of England. This act to continue till the end of the next General Assembly.

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