how to govern a city on the hill: the early puritan contribution to american constitucionalism

Electronic copy available at: http://ssrn.com/abstract=1851134

HOW TO GOVERN A CITY ON A HELL: THE EARLYPURITAN CONTRIBUTION TO AMERICAN

CONSTITUTIONALISM

John Witte,Jr.*

" [M]en shall say of succeeding plantations: the lord make it likethat of New England: for wee must Consider that wee shall be as aCity upon a Hill, the eies of all people are upon us."

John Winthrop1

In his 1765 Dissertation on the Canon and the Feudal Law, JohnAdams defended the "sensible" New England Puritans against those"many modern Gentlemen" of his day, who dismissed them as bigoted,narrow, "enthusiastical, superstitious and republican."2 "[S]uch ridicule[and] ribaldry," Adams retorted, ". . . is grosly injurious and false."3 ThePuritans were, for Adams, "illustrious patriots," for they were the first"to establish a government of the church more consistent with the scrip-tures, and a government of the state more agreable to the dignity of hu-mane nature than any other seen in Europe: and to transmit such a gov-ernment down to their posterity."4

Twentieth-century constitutional historians have come to accept themore sympathetic interpretation of the Puritans reflected in Adams' senti-ments. At the turn of this century, the Puritans were still often depicted asrigid "theonomists" and belligerent "theocrats" who knew neither true

* Director of Law and Religion Program and Assistant Professor of Law, Emory University;Fellow, Center for Public Jutice, Washington, D.C. This Article represents the tentative conclusionsof work in progress on Puritanism and law. It builds in part on Witte, Blest Be the Ties That Bind:Covenant and Community in Puritan Thought, 36 EMORY L.J. 579 (1987). I wish to thank mycolleagues Frank S. Alexander and Eliza Ellison for their comments on an early draft of this Articleand Sharon T. Mobley, J.D. Candidate, Emory Law School, M.T.S. Candidate, Candler School ofTheology, 1991, for her able and ample research assistance.

1 J. Winthrop, A Model of Christian Charity (1630), reprinted in PURITAN POLITICAL IDEAS75, 93 (E. Morgan ed. 1965). The "city on a hill" metaphor is drawn from the Bible. See Matthew5:14.

* 1 PAPERS OF JOHN ADAMS 115 (R. Taylor,'M. Kline & G. Lint eds. 1977).' Id.' Id. at 115-16.

Electronic copy available at: http://ssrn.com/abstract=1851134

42 EMORY LAW JOURNAL [Vol. 39

law nor true liberty.8 Today, they are included among the "leaders ofAmerican political thought," whose inspiration and instruction were in-dispensable to the success of both the American Revolution and the stateand federal constitutional conventions that followed.6

Even these more sympathetic interpreters, however, have tended to ab-stract the contributions of the Puritans to American constitutionalism.First, they have tended to focus on the contributions of eighteenth-centuryPuritan writers, such as John Wise, Charles Ghauncy, and JonathanMayhew, and have largely ignored the original contributions of the Puri-tan sermonizers and pamphleteers of the seventeenth century. Second,these interpreters have tended to focus on Puritan constitutional ideas andhave largely ignored the constitutional institutions and other legal struc-tures that the Puritans devised or adopted to implement their ideas.Third, they have often divorced these constitutional ideas from the explicittheological foundations on which the Puritans based them. Puritan consti-tutionalism has thus been abstracted .both from the historical and legalcontext in which it initially emerged and from the system of religious be-liefs and values which inspired and sustained it.

This Article, accordingly, explores briefly the constitutional ideas andinstitutions of seventeenth-century Puritan New England. It analyzes theconstitutional ideas that the Puritans derived from their theological doc-trines of covenant, church and state, and sin, and it examines the formsand functions of political and ecclesiastical government they devised in im-plementation of these ideas.

I. THE THEOLOGY AND POLITY OF NEW ENGLAND

The English royal charters that first constituted the New England colo-nies gave the Puritans broad latitude to conceive and create their idealtheology and polity. The charters imposed neither a religious nor a royal-ist establishment. The colonists were free to propound and profess their

6 For a good treatment of this earlier historiography, see Wood, Struggle over the Puritans, 36N.Y. REV. BOOKS 26 (1989); Ahlstrom, The Puritan Ethic and the Spirit of American Democracy, inCALVINISM AND THE POLITICAL ORDER 88 (G. Hunt ed. 1970).

* See, e.g., B. BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 32 (1967);C. ROSSITER, THE POLITICAL THOUGHT OF THE AMERICAN REVOLUTION 8 (1963).

1990] A CITY ON A HILL 43

own religious beliefs, provided that they "wynn and incite the Natives ofCountry, to the Knowledg and Obedience of ... the Christian Fayth."7

The colonists were largely free to develop their own political and legalstructures, provided that they "be not contrarie or repugnant to the Lawes[and] Statutes o f . . . England."8 They were free to sponsor the emigrationof like-minded believers to the colony, provided that "none of the saidePersons be ... restrayned" by the Crown and "[tjhat every [one] of themshalbe [temporarily] free and quitt from all Taxes."9 In the later seven-teenth century, English authorities tried repeatedly to impose their will oncolonial religion and politics through new forms of legislation and review.They succeeded only at the turn of the eighteenth century with the pas-sage of a new provincial charter in Massachusetts and with the reinforce-ment of royal control in the other New England colonies.10 For some fourgenerations, therefore, the Puritans enjoyed both the homogeneity and thehegemony to cany out their theological and political experiments.

The New England Puritans did not create their theology and polity outof whole cloth. Though largely free from the ecclesiastical control of Eu-ropean Calvinists, they maintained the basic convictions of their Europeanbrethren. The theological treatises of John Calvin and William Ames andthe canons of the Dordt and Westminster synods were important sourcesof colonial theology.11 Though largely free from the political control of theEnglish Crown, the Puritans respected English "Lawes and Statuts" andthe "liberties and Immunities of free and natural! Subjects," as their char-ters required.12 The legal treatises of Edward Coke and Michael Daltonand the enactments of Parliament and the Crown were important sources

7 Charter of Massachusetts Bay (1629) [hereinafter Massachusetts Charter], reprinted in 3FEDERAL ANB STATE CoMsrmrnojss, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THEUNITED STATES 1846, 1857 (F. Thorpe ed. 1909). See also Charter of Connecticut (1662) [hereinaf-ter Connecticut Charter], reprinted in 1 id. at 529, 534.

" Massachusetts Charter, supra note 7, at 1857. See also Connecticut Charter, supra note 7, at534; Grant of New Hampshire to Capt. John Mason (1629), reprinted in 4 FEDERAL AND STATECONSTITUTIONS, supra note 7, at 2433, 2436.

" Massachusetts Charter, supra note 7, at 1855.10 See generally E. RUSSELL, THE REVIEW OF AMERICAN LEGISLATION BY THE KING IN

COUNCIL (1915) (Hein ed. 1981). The Massachusetts Charter of 1691 is reprinted in 3 FEDERAL «AND STATE CONSTITUTIONS, supra note 7, at 1870.

" See generally P. MILLER, ORTHODOXY IN MASSACHUSETTS 1630-1650 (1933); Stewart, Pu-ritan Literature and the Flowering of New England, 3 WM. & MARY Q. (3o SER.) 319 (1946).

" Massachusetts Charter, supra note 7, at 1853, 1857.


of colonial law.13 What distinguished New England Puritans both fromother Galvinist communities in Europe and from other English colonies inAmerica was their ability to derive from their theological doctrines directand dramatic constitutional ideas and institutions. It was this feature thatrendered Puritan New England a fertile seedbed for Americanconstitutionalism.

Three theological doctrines lay at the foundation of Puritan constitu-tionalism: the doctrines of covenant, church and state, and sin. The Puri-tans were neither systematic nor scientific in the formulation of these the-ological doctrines or in the derivation of constitutional implications fromthem. They propounded their ideas in scattered sermons and pamphletsmore than in formal treatises and commentaries. They supported theirpropositions with biblical texts more than they proved them with logicalarguments. Nevertheless, there were distinctive themes among the Puri-tans' constitutional ideas, and these often inspired the creation or adoptionof distinctive constitutional institutions in the colony. The doctrine of cov-enant provided the outlines of the Puritan constitution. The doctrines ofchurch and state and sin provided the foundation for much of the constitu-tional detail.

II. COVENANT

For the New England Puritans, the doctrine of covenant was at once atheological and a sociological doctrine. It was used to describe not only therelationship between man and God but also the multiple relationshipsamong men. Like many Protestants, the Puritans believed that God hadcreated a special covenant with His elect whereby He had promised themeternal salvation and beatitude in return for their faithful service and de-votion.14 Unlike many Protestants, the Puritans also believed that Godhad created various covenants for the organization and ordering of humansociety, including (1) a social or communal covenant, (2) a political orgovernmental covenant, and (3) an ecclesiastical or church covenant. Thesocial covenant created the society or commonwealth as a whole; the polit-

ls See generally Cohen, Legal Literature in Colonial Massachusetts, in LAW IN COLONIALMASSACHUSETTS 1630-1800 243 (D. Coquillete ed.1984).

" See generally Witte, Blest Be the Ties That Bind: Covenant and Community in PuritanThought, 36 EMORY L.J. 579, 579-89 (1987) and sources cited therein.


ical and ecclesiastical covenants created the two chief seats of authoritywithin that society, the church and the state. Each of these covenants,though preordained by God and foreshadowed in Scripture, was to begiven positive form by man.15

A. The Social Covenant

At the creation of the world, the Puritans believed, God had vested allpersons with "a natural liberty" and subjected them to "a natural law."The natural man, Winthrop declared, "stands in relation to [his fellow]man simply, [and] hath liberty to do what he lists; it is a liberty to [do]evil as well as to [do] good."16 The vice or virtue of a person's actions isdetermined by the natural law, which God has written on the hearts ofpersons and rewritten on the pages of Scripture. This natural law setsforth the basic "principalls of morall equitie."17 It establishes basic valuesof devotion and piety, honesty and honor, discipline and diligence,humility and charity. It institutes basic human relationships of friendshipand kinship, authority and submission. It commands that each person loveGod and love his neighbor as himself.18

The Puritans believed, however, that "the Voice of Nature plainly de-clares that Mankind" join together in social covenant and "dwell togetherin Societies."19 This calling from a natural state to a social state was bornof both human necessity and divine destiny.

On the one hand, God had called all persons to form societies in orderto provide the order and stability needed to maintain natural liberty and

18 Compare the stratification of covenants described in W. McWniiAMS, THE IDEA OF FRA-TERNITY IN AMERICA 123-26 (1973) and H. SCHNEIDER, THE PURITAN MIND 19-25 (1930).

16 2 J. WINTHROP, WINTHROP'S JOURNAL 238 (J. Hosmer ed. 1908) [hereinafter WINTHROP'SJOURNAL].

17 Foreword to THE BOOKE OF THE GENERALL LAWES AND LIBERTIES OF ... NEW PLYM-OUTH (1658) [hereinafter THE GENERALL LAWES OF NEW PLYMOUTH], reprinted in 11 RECORDSOF THE COLONY OF NEW PLYMOUTH IN NEW ENGLAND: LAWS, 1623-1682 147, 148 (D. Pulsifered. 1861) (AMS Press ed. 1968).

18 For further discussion of Puritan natural law doctrine, see Eusden, Natural Law and Cove-nant Theology in New England, 1620-1670, 5 NATURAL L. FORUM 1 (1960).

19 J. Barnard, The Throne Established By Righteousness (1734), reprinted in THE PURITANS270-71 (P. Miller and T. Johnson eds. 1938). Barnard's discussion draws heavily on the Foreword toTHE GENERALL LAWES OF NEW PLYMOUTH, supra note 17.


natural law. "The exercise and maintaining of [natural] liberty," withoutsocial constraints, wrote Winthrop, "makes men grow more evil, and intime to be worse than brute beasts."20 Men "prey" upon each other, plac-ing the natural liberty of all into jeopardy. Society helps guarantee suchliberty. Moreover, in his natural state, man suffers from "weakness, im-potencie and insufficiency" both in the apprehension of and the obedienceto the natural law.21 Society helps reconfirm and reinforce these naturallaw principles.

On the other hand, and more importantly, God had called the Puritansin particular to form their society to help fulfill His providential plan inthe New World. The Puritans believed that God had entered into a spe-cial covenant relationship with them to be His "surrogate Israel," Hisnewly chosen people.22 By this covenant, they were called to be a "city onthe hill," a "light to the nations," "a model of Christ's kingdom amongthe heathens."23 They were commanded to preserve and propagate godlybeliefs and values, to adopt and advocate godly morals and mores, toarouse themselves and all those around them to godly obedience. God hadpromised them peace and prosperity if they succeeded in their covenantaltask, death and damnation if they failed.24

The Puritan colonists swore allegiance to such social covenants beforeGod and each other when forming their new communities. "We whosenames are vnderwritten," reads the famous Mayflower Compact of 1620,"[hjaving vnder-taken for the glory of God, and advancement of theChristian Faith, . . . a Voyage to plant the first Colony . . . doe by thesepresents, solemnly & mutually in the presence of God and one of another,covenant, and combine our selues together into a civill body politike, forour better ordering and preservation, and furtherance of the ends afore-

m 2 WINTHROP'S JOURNAL, supra note 16, at 238." T. HOOKER, THE APPLICATION OF REDEMPTION 43 (1659) (Arno Press ed. 1972).M C. Mather, The Serviceable Man: A Discourse Made Unto the General Court of the Massa-

chusetts Colony, New England, at the Anniversary Election (1690), reprinted in PURITAN POLITI-CAL IDEAS, supra note 1, at 233. See also J. Higginson, The Cause of God and His People in NewEngland 18 (1663) (available on microprint in Early American Imprints series, Evans No. 80).

*» See supra note 1 and accompanying text; J. Scorrow, NARRATIVE OF THE PLANTING OFMASSACHUSETTS (1694), reprinted in 4 COLLECTIONS OF THE MASSACHUSETTS HISTORICAL SOCI-ETY (4TH SER.) 279 (1871).

"* See, e.g., S. Willard, Covenant-Keeping the Way to Blessedness (1682) (available onmicroprint in Early American Imprints series, Evans No. 335).


said."26 The citizens of the new town of Salem convened in 1629 to swear:"We Covenant with the Lord and one with an other; and doe bynd ourselves in the presence of God, to walke together in all his waies, accordingas he is pleased to reveale himself unto us in his Blessed word of truth."28

The following year John Winthrop declared to the new citizens of Massa-chusetts Bay: "Thus stands the cause betweene God and us, wee are en-tered, into Covenant with him for this worke, wee have taken out a Com-mission, [and He] will expect a strickt performance of the Articlescontained in it."27

Participation in this special social covenant had to be wholly voluntaryand consensual. "There can be no necessary tye of mutuall accord andfellowship come, but by free engagement" wrote Thomas Hooker. "[H]ethat will enter must also willingly binde and ingage himself to each mem-ber of that society . . . or else a member actually he is not."28 The volun-tary participation of both the entering individual and the existing commu-nity were essential. No person could be forced to join the communitywhose covenant and culture he found objectionable. No community couldbe forced to accept or retain a person whose convictions or conduct itfound objectionable.29 For the first two or three generations of coloniza-tion, at least, the Puritans were notoriously selective in whom they wouldadmit or retain within the covenant community. Only professing membersof the Puritan congregational churches in good standing came to be ac-cepted. Schismatical members like Anne Hutchinson and Roger Williams

98 The Agreement Between the Settlers of New Plymouth (1620) (after 1793 called TheMayflower Compact) (emphasis in original), reprinted in W. WALKER, THE CREEDS AND PLAT-FORMS OF CONGREGATIONALISM 92 (1960).

"* The Covenant of 1629, reprinted in W. WALKER, supra note 25, at 116." J. Winthrop, supra note 1, at 92.38 T. HOOKER, A SURVEY OF THE SUMME OF CHURCH-DISCIPLINE pt. 1 47, 50 (1648) (Re-

search Library of Colonial Americana ed. 1972) (emphasis in original). On the voluntary covenantformation in New Haven, see T. BREEN, THE CHARACTER OF THE GOOD RULER 1630-1730 48-49(1970). See also T. HUTCHINSON, A COLLECTION OF PAPERS RELATING TO THE HISTORY OF MAS-SACHUSETTS BAY 63 (1769) (quoting Winthrop: "No commonwealth can be founded but by freeconsent.").

** See, e.g., J. Winthrop, A Defense of an Order of Court Made in the Year 1637, reprinted inTHE PURITANS, supra note 19, at 200-01: "If we heere be a corporation established by free consent,if the place of our cohabitation be our owne, then no man hath right to come into us &c. without ourconsent. . . . The intent of the law is to preserve the wellfare of the body; and for this ende to havenone received into any fellowship with it who are likely to disturbe the same, and this intent (I amsure) is lawful and good."


were quickly banned.30 Heretical Papists, "Familists, Antinomians,Anabaptists, and other Enthusiasts" were not suffered entrance at all.31

Those who voluntarily joined this covenant were subject to both thebenevolence and the discipline of the community.

The Puritans attached great importance to public benevolence. Charityand public spiritedness were prized. Churlishness and private sumptuous-ness were scorned. "[W]ee must entertaine each other in brotherly Affec-cion," declared Winthrop. "[W]ee must delight in cache other, makeothers Condicions our owne rejoyce together, mourne together, labour,and suffer together, allwayes haveing before our eyes our Commission andCommunity in the worke, our Community as members of the samebody."32 These were not just homiletic platitutes. The Puritans prescribedand practiced good samaritanism. They punished citizens who failed toaid their neighbors in need or peril. They set up public trusts, communitychests, and work programs for indigents and immigrants. They developedelaborate systems of relief for the poor, the elderly, and the handicapped.They established rather sophisticated systems of academic and vocationaleducation.33 By modern standards, the benevolence afforded by the colo-nies may seem parsimonious. But, given the hard social and economic con-ditions faced by the colonists, they were rather magnanimous.

The Puritans attached even greater importance to public discipline.The social covenant, the Puritans believed, placed the community "undera solemn divine Probation" and under threat of "eminent [divine] trial."34

30 On the plight of Roger Williams, the eventual founder of the colonies of Providence andRhode Island, see E. MORGAN, ROGER WILLIAMS: THE CHURCH AND THE STATE (1967). On theplight and trial of Anne Hutchinson, see D. HALL, THE ANTINOMIAN CONTROVERSY, 1636-1638(1968) and 1 WINTHROP'S JOURNAL, supra note 16, at 240.

M D. BQQRSTIN, THE AMERICANS: THE COLONIAL EXPERIENCE 7 (195S) (quoting N. Ward,The Simple Cobler ofAggawam in America (1647)). See also J. GAER & B. SIEGEL, THE PURITANHERITAGE 82-89 (1964).

M J. Winthrop, supra note 1, at 92. For an elaboration of these sentiments, see I. Mather, TheExcellency of a Publick Spirit (1702) (available on microprint in Early American Imprints series,Evans No. 1076).

33 See generally R. KELSO, THE HISTORY OF PUBLIC POOR RELIEF IN MASSACHUSETTS, 1620-1920 30-195 (1922). See also infra text accompanying notes 58-61. I treat this subject in greaterdetail in a forthcoming article, Witte, Tax Exemption of Church Property: Historical Anomaly orValid Constitutional Precept?, 64 S. CAL. L. REV. (forthcoming 1990).

3< W. Stoughton, New Englands True Interest: Not to Lie (1670) (emphasis in original), re-printed in THE PURITANS, supra note 19, at 243.


This belief had two consequences. First, it translated the most mundane ofhuman affairs into cosmic terms. The Puritans stressed ambition, auster-ity, frugality and other supposed virtues in their lives precisely becausethe social covenant rendered them agents of God, instruments of God'sprovidential plan. For them to be lax in zeal, loose in discipline, or sump-tuous in living would be a disservice to God, a breach of the social cove-nant. Such a breach would inevitably bring divine condemnation on thecommunity in the form of war, pestilence, poverty, and other forms offorce majeure. This belief is reflected not only in sermons but also instatutes. A 1675 Massachusetts statute, for example, prefaces its rigid dis-ciplinary code with these words:

Whereas the most wise & holy God, for seuerall yeares past, hathnot only warned us in his word, but chastized us wth his rods, in-flicting upon us many generall (though lesser) judgments, but wehaue neither heard the word nor rod as wee ought, so as to be effec-tually humbled for our sinns, to repent of them, reforme and amendour wayes . . . .as

Second, the Puritans' belief in a "solemn divine probation" renderedthe reformation of society a constant priority. They had to ensure that allinstitutions and all aspects of society comported with the covenantal ideal.Thus Puritan sermonizers urged their listeners: "Reform all places, allpersons and all callings. Reform the benches of judgment, the inferiormagistrates. . . . Reform the universities, reform the cities, reform thecounties, reform inferior schools of learning, reform the Sabbath, reformthe ordinances, the worship of God. Every plant which my Father hathnot planted shall be rooted up."sa

These twin goals of the social covenant — to maintain natural law andnatural liberty and to attain the ideal community of benevolence and disci-pline — could not be realized without some measure of law and authority.

36 5 RECORDS OF THE GOVERNOR AND COMPANY OF THE MASSACHUSETTS BAY IN NEWENGLAND 59 (N. Shunleff ed. 1853-54) [hereinafter MASSACHUSETTS RECORDS). Similar "jer-emaids" appear regularly in seventeenth century Puritan sermons. See the excellent facsimile selectionin ELECTION DAY SERMONS: PLYMOUTH AND CONNECTICUT (1983). See generally T. BREEN,supra note 28, at 97-99 and sources cited therein.

ae Quoted in Herman, Religious Foundations of Law in the West: An Historical Perspective, 1J.L. & RELIGION 3, 30 (1983). Berman's entire discussion of the Puritans' reformation ideal is inval-uable. See id. at 29-31; Berman, Law and Belief in Three Revolutions, 18 VAL. U.L. REV. 569, 595-97 (1984).


God had created both the church and the state to serve as the two chiefinstruments of law and authority in the covenant community. Each ofthese institutions was constituted by a covenant between God, the officials,and their subjects. Each institution had a distinctive calling and responsi-bility in the community.

B. . The Church Covenant

God had vested in the church the spiritual power of the Word. Thechurch was called to preach the Gospel, to administer the sacraments, toteach the young, to fight injustice, and to care for the poor and the needy.By such activities, the church would lead all members of the community toa greater understanding of their covenantal responsibilities of benevolenceand love. The church was also empowered to devise its own polity, todefine its own doctrine, and to discipline its own members who had sinnedthrough the spiritual means of instruction, the ban, and excommunication.By such activities, the church would confirm and reinforce the natural lawand the divine authority that undergirded it.37

Each church was constituted by a voluntary covenant, or agreement,between God and like-minded believers. By this covenant, these believersswore to God and to each other to uphold God's ordinances, to dischargethe special calling of the church, and to be subject to those who came intoauthority within the church. "Saints by Calling" reads one Puritan docu-ment, "must have a Visible-Political-Union amongst themselves . . . [andform a] Co[m]pany of professed believers Ecclesiastically Confoederat."3*"This Form is the Visible Covenant, Agreement, consent wherby theygive up themselves unto the Lord, to the observing of the ordinances ofChrist together in the same society, which is usually called the Church-Covenant] For wee see not otherwise how members can have Church-power one over another mutually."89

Many of the Puritan congregational churches swore to such covenants

37 See generally The Cambridge Synod and Platform chs. 1-3, 5 (1648) [hereinafter CambridgeSynod], reprinted in V. WALKER, supra note 25, at 203-07, 209-10. See also T. HOOKER, supranote 28; R. Mather, Church-Government and Church-Covenant Discussed ch. 10 (1643), reprintedin CHURCH COVENANT: Two TRACTS 217 (R. Robey ed. 1972).

M Cambridge Synod, supra note 37, at 207, 217.39 Id. at 207-09 (emphasis in original).


both upon initially forming the church and upon subsequently admittingnew members to it. The Watertown Covenant-Greed of 1647 containstypical language:

We believe that God's people, besides their general covenant withGod, . . . ought also to join themselves into a church covenant onewith another, and to enter into a particular combination togetherwith some of his people to erect a particular ecclesiastical body, andkingdom, and visible family and household of God, for the managingof discipline and public ordinances of Christ in one place in a duti-ful way, there to worship God and Christ, as his visible kingdomand subjects, in that place waiting on him for that blessing of hisordinances and promises of his covenant, by holding communionwith him and his people, in the doctrine and discipline of that visiblekingdom . . . . We . . . do here bind ourselves, in the presence ofmen and angels, by his grace assisting us, to choose the Lord, toserve him, and to walk in all his ways, and to keep all his com-mandments and ordinances . . . .<0

These church covenants formed the core of congregational church con-stitutions, which defined in detail the form and function of the churchoffices and the rights and responsibilities of its parishioners. The mostfamous of such early church constitutions was the Cambridge Synod andPlatform, published in 1648.

C. The Political Covenant

According to the Puritans, God had vested in the state the temporalpower of the sword. "Civil Rulers," they believed, were "God[']sVicefregents] here upon earth; hence they are sometimes honoured withthe title of Gods . . . ."41 They were called to reflect and represent Hismajesty and authority. They were to exemplify godly justice, mercy, disci-pline and benevolence. Political rulers were vested in their offices by a

40 Watenown Covenant-Creed (1647), reprinted in W. WALKER, supra note 25, at 149, 155-56. See also The Covenant of the Charlestown-Boston Church (1630), reprinted in W. WALKER,supra note 25, at 131 (containing similar language).

•" S. Willard, The Character of a Good Ruler (1694), reprinted in THE PURITANS, supra note19, at 253. See also J. Todd, Ciuil Rulers the Ministers of God for Good to Men (1749) (available onmicroprint in Early American Imprints series, Evans No. 6430) (civil authority is divinely ordained).


tripartite covenant between God, the people, and themselves. By this cove-nant, the rulers accepted the divine mandate for their political office. Thepeople, in turn, vowed to God and to the rulers to oblige and submit tothis rule, to accept and respect His laws.42

Political officials had three specific responsibilities under this politicalcovenant. First, they were required to appropriate and apply natural orgodly law in the positive law of the state. The Puritans often reduced thisnatural law to the Decalogue and thus described the magistrate as a custo-dian of both tables of the Decalogue.43 The positive law was thus to gov-ern both the relationship between man and God, based on the First Tableof the Decalogue, and the multiple relationships among men, based on theSecond Table. On the authority of the First Table, magistrates were topunish all forms of idolatry, witchcraft, blasphemy, false swearing, andSabbath Day violations.44 On the authority of the Second Table, theywere to punish all forms of disobedience to authority, all violations of theperson or property of the other, all adultery, prostitution, and other sexualmisconduct, all dishonesty, false testimony, and other fraud against an-other.46 Only those positive laws that were rooted in and reflected thenatural law, the Puritans believed, had legitimacy and authority.

" S. Willard, supra note 41, at 253-54. See also J. Wimhrop, On Arbitrary Government, re-printed in PURITAN POLITICAL IDEAS, supra note 1, at 152 ("Judges are Gods upon earthe: there-fore, in their Administrations, they are to holde forthe in the wisdome and mercye of God, (which arehis Attributes) as well as his Justice."); See also C. MATHER, BONIFACIOUS: AN ESSAY UPON THEGOOD 91, 94 (D. Levin ed. 1966) ("[A] MAGISTRATE ... is: the minister of God for good Aprince exemplary for piety, sheds the rays of Heaven, as the sun shining in his meridian strength,with a most penetrating force into the people, rejoicing under his wings.").

48 See, e.g., Cambridge Synod, supra note 37, at 236 ("It is the duty of the Magistrate, to takecare of matters of religion, & to improve his civil authority for the observing of the duties commandedin the first, as well as for the observing of duties commanded in the second table [of the Decalogue].").The Puritans followed traditional Calvinists who divided the Ten Commandments into two tables.They assigned the first four commandments, which governed the relationship between man and God,to the first table and the last six commandments, which governed the relationships among persons, tothe second table. See B. REICKE, DIE ZEHN WORTE IN GESCHICHTE UND GEGENWART 21-42(1973). For a discussion of other Protestant and Catholic treatments of the Ten Commandments, seeHerman & Witte, The Transformation of Western Legal Philosophy in Lutheran Germany, 62 S.CAL. L. REV. 1573, 1618-21 (1989).

44 See, e.g., Cambridge Synod, supra note 37, at 237 ("Idolatry, Blasphemy, Heresy, ventingcorrupt & pernicious opinions, . . . open contempt of the word preached, prophanation of the Lordsday, disturbing the peaceable administration & exercise of the worship & holy things of God,. . . areto be restrayned, & punished by civil authority.").

40 See, e.g., Letter from John Cotton to Lord Say (1636), reprinted in THE PURITANS, supranote 19, at 209-12; S. Willard, supra note 41, at 250-56.


This concern that political officials preserve the natural law is promi-nent in many of the Puritan law codes of the seventeenth century. Thepreface to the famous Booke of the Generall Lawes and Liberties o f . . .New Plymouth has typical language:

. . . God being the God of order and not of confusion hathComaunded in his word; and put man into a capasitie in some mea-sure to obserue and bee guided by good and wholsome lawes whichare soe fare good and wholsome; as by how much they are deriuedfrom and agreeable to; the Ancient platforme of Gods lawe . . .[which are] soe exemplary being grounded on principalls of morallequitie as that all men; (Christians especially) ought alwaies to hauean eye thervnto; in the framing of theire Politique Constitutions.48

Second, political officials were required to protect and promote the lib-erties and rights of their subjects. "A People are not made for Rulers, ButRulers for a People," wrote a leading Puritan divine.47 God has set therulers in authority, and the people have submitted to that authority, inorder to gain a "Civil felicity" not available in the "natural state."48 Such"felicity" can exist only "[w]hen men can injoy their Liberties and Rightswithout molestation or oppressionf,] . . . when they are secured againstViolence, and may be Righted against them that offer them any injury,without fraud; and are encouraged to serve God in their own way."49

This concern that political officials preserve the natural liberty of sub-jects by positive law is equally prominent in the Puritan law codes of theseventeenth century. The most famous statement of this principle appearsin the opening words of the Laws and Liberties of Massachusetts:

Forasmuch as the free fruition of such Liberties, Immunities,priviledges as humanitie, civilitie & Christianity call for as due toeverie man in his place, & proportion, without impeachmet & in-fringement hath ever been, & ever will be the tranquility & stabilityof Churches & Common-wealths; & the deniall or deprivall thereofthe disturbance, if not ruine of both: It is therefore ordered . . .[tjhat no mans life shall be taken away; no mans honour or goodname shall be stayned; no mans person shal be arrested, restrained,

<e THE GENERALL LAWES AND LIBERTIES OF NEW PLYMOUTH, supra note 17, at 148.47 S. Willard, supra note 41, at 254.48 Id.m Id. at 255.


bannished, dismembred nor any wayes punished; no man shall bedeprived of his wife or children; no mans goods or estate shal betaken away from him; nor any wayes indamaged under colour ofLaw or countenance of Authentic unles it be by vertue or equity ofsome expresse law of this Country warranting the same establishedby a General Court & sufficiently published; or in case of the defectof a law in any particular case by the word of God.60

Third, political officials were to be the catalysts and champions of theperpetual reformation mandated by the social covenant. "[A] work of Ref-ormation," wrote Samuel Willard, "is set about in vain, and to no pur-pose, if Rulers do not lead in it."51 Officials were required to compel thecommunity by their example, by their authority, and by their law to reachand retain the covenantal ideal to which the community had subscribed.This mandate often required that the law itself be perpetually emendedand amended. "The reformation of the law, and more law for the refor-mation of the world, is what is mightily called for."62

These social, ecclesiastical, and political covenants formed the broadoutline of Puritan constitutionalism. They constituted the community as awhole, and the two chief organs of authority within it, the church and thestate. They also constituted the basic values and beliefs of the community,and the basic rights and responsibilities of individuals and institutionswithin it. The other two basic doctrines of church and state, and of sin,helped define more clearly the nature and form of ecclesiastical and politi-cal government, and the appropriate relationship between these forms.

so THE BOOK OF THE GENERAL LAWS AND LIBERTIES CONCERNING THE INHABITANTS OFMASSACHUSETTS 1 (1648) (M. Farrand ed. 1929) [hereinafter THE LAWS .Wo LIBERTIES OFMASSACHUSETTS].

" S. \Villard, A Sermon Upon the Death of John Leverett, Esq. 6 (16~9) (available onmicroprint in Early American Imprints series, Evans No. 277). See also I. Mather. The Necessity ofReformation With The Expedients Thereunto Asserted iii-iv (1679) (available on microprint in EarlyAmerican Imprints series, Evans No. 263) ("We doe not read in the Scripture, nor in History, of anynotable general Reformation amongst a People, except the Magistrate did help forward the work.").For an excellent discussion of this responsibility, see T. BREEN, supra note 28. a: 97.

M C. MATHER, supra note 42, at 130.


III. CHURCH AND STATE

The theological doctrine of church and state went hand-in-hand withthe doctrine of covenant. The Puritans conceived the church and the stateas two separate covenantal associations, two coordinate seats of godly au-thority and power in society. Each institution had a distinctive calling andresponsibility. Each had a distinctive polity and practice. "[O]urChurches, and civil State have been planted, and growne up (like twotvvinnes)," reads the preamble to the Laws and Liberties of Massachu-setts. To conflate these two institutions would be to the "misery (if notmine) of both."63

The Puritans devised a variety of safeguards to ensure this basic sepa-ration of church and state. Church officials were prohibited from holdingpolitical office, from serving on juries, from interfering in governmentalaffairs, from endorsing political candidates, or from censuring the officialconduct of a statesman who was also a parishioner in the church. Politicalofficials, in turn, were prohibited from holding ministerial office, from in-terfering in internal ecclesiastical government, from performing sacerdotalfunctions of clergy, or from censuring the official conduct of a cleric whowas also a citizen of the commonwealth.64 To permit any such officious-ness on the part of the church or the state, Winthrop averred, "wouldconfounde those Jurisdictions, which Christ hath made distinct."66

Although church and state were not to be confounded, however, theywere still to be "close and compact."66 For, to the Puritans, these twoinstitutions were inextricably linked in nature and in function. Each wasan instrument of godly authority. Each did its part to establish and main-tain the covenantal ideal for the colony. "I look upon this as a little modelof the Glorioufs] Kingdome of Christ on Earth," wrote Uriah Oakes."Christ Reigns among us in the Common wealth as well as in theChurch, and hath his glorious Interest involved and wrapt up in the goodof both Societies respectively." Thus "the Interest of Righteousness in the

53 THE LAWS AND LIBERTIES OF MASSACHUSETTS, supra note 50, at A2.M See id. at 18-20; Cambridge Synod, supra note 37 at 234-37. For a general discussion, see T.

BREEN, supra note 28, at 37-44; S. COBB, supra note 20, at 158-59, 178-79; G. HASKINS, LAW ANDAUTHORITY IN EARLY MASSACHUSETTS: A STUDY IN TRADITION AND DESIGN 61-63 (1960).

™ T. BREEN, supra note 28, at 42.*" Letter from John Cotton to Lord Say (1636), supra note 45, at 209.


Common wealth, and Holiness in the Churches are inseparable. Theprosperity of Church and Common wealth are twisted together. Break oneCord, you weaken and break the other also."67

It was on the strength of such arguments that various laws and policieswere enacted to facilitate the coordination and cooperation of church andstate in New England. Colonial magistrates provided various forms of ma-terial aid to congregational churches and officials. Public lands weredonated to church groups for the construction of meetinghouses, parson-ages, day schools, orphanages, and other structures used in the church'sministry. Tithe rates and church rates were collected to support congrega-tional ministers and teachers, elders and deacons. Tax exemptions andimmunities were accorded to some of the religious, educational, and chari-table organizations that they operated. Special subsidies and military pro-tections were provided for congregational missionaries who proselytizedamong the heathen Indians and heretical "enthusiasts and episcopals."Special criminal laws prohibited interference with religious services andceremonies.68

Colonial magistrates also provided various forms of moral support "totake care the people be fed w[i]th wholesome & sound doctrine" and topreserve the "order and eomunion of churches."59 Sabbath day laws pro-hibited all forms of unnecessary labor and uncouth leisure on Sundaysand holy days; they also required faithful attendance at services. Blas-phemy laws prohibited all forms of false swearing, foul language, andirreverence either "toward the Word preached or the Messengersthereof." Idolatry laws sanctioned various forms of sacrilege, witchcraft,sorcery, magic, alchemy, and other invocations of "false gods." Religiousincorporation laws required all new churches to secure "the approbationof the Magistrates," and required all "schismaticall" churches to submitto the "coercive power" of the magistrates.60

" U. Oakes, New England Pleaded With, and Pressed to Consider the Things Which ConcernHer 49 (1673) (available on microprint in Early American Imprints series, Evans No. 180).

58 See generally THE LAWS AND LIBERTIES OF MASSACHUSETTS, supra note 50, at 18-20;Witte, supra note 33.

M 4 MASSACHUSETTS RECORDS, supra note 35, at 328.60 See id.; THE LAWS AND LIBERTIES OF MASSACHUSETTS, supra note 50, at 18-20; Cambridge

Synod, supra note 37, at ch. 17. See also T. WERTENBAKER, THE PURITAN OLIGARCHY: THEFOUNDING OF AMERICAN CIVILIZATION 61-77 (1947).


Congregational ministers, in turn, provided various forms of materialaid and accommodation to the state. Church meetinghouses and chapelswere used not only to conduct religious services, but also to host townassemblies, political rallies, and public auctions, to hold educational andvocational classes, to house the community library and bookstore, to main-tain census rolls and birth, marriage, and death certificates, and to dis-charge several other public functions. Parsonages were used not only tohouse the minister and his family, but also to harbor orphans and widows,the sick and the aged, victims of abuse and disaster, and other wards ofthe state.61

Congregational ministers also afforded various forms of moral supportto the state. They preached unswerving obedience to the authorities anddisciplined by spiritual means those parishioners found guilty of "serious"crimes. They encouraged their parishioners to be active in political affairsand each year offered "election day sermons" on Christian political prin-ciples. These ministers also offered learned advice on the requirements ofgodly law, and were often asked to participate in the drafting of new leg-islation and the resolution of cases that raised particularly trying moralissues.62

This system of church-state relations in New England, however idealand clear in theory, was more than occasionally blurred in practice. Pow-erful Puritan ministers, like John Cotton and Thomas Shepherd, some-times used their strong pastoral and pedagogical authority in the colony todictate political changes, to color political elections, and to shape legisla-tion and adjudication. Powerful Puritan magistrates, like John Winthropand Thomas Hooker, sometimes used their supervisory authority over thechurch's property and polity as an instrument of control and influence.63

Yet, despite these instances of officiousness by ecclesiastical and politicalofficials, the general reality was one of cooperation between them.

81 See Witte, supra note 33 and sources cited therein.8a Puritan clergy played a prominent role in the drafting of the famous Laws and Liberties of

Massachttsetts, the Fundamental Articles of New Haven (1639), the New Haven Fundamentals(1643), and the Connecticut Code of Laws (1650). See generally T. BREEN, supra note 28, at 78-86;Canty-Letsome, John Winthrop's Concept of Law in. 17th Century New England, One Notion ofPuritan Thinking 16 DOSQ. L. REV. 331, 343-52 (1977-78).

83 See generally G. HASKINS, supra note 54, at 60-62.


IV. THE DOCTRINE OF SIN

The Puritans were rather pragmatic in developing the appropriateforms of government for the church and. the state. They made little pre-tense that their government structures were biblically commanded- or di-vinely inspired. "I know of no particular Form of ... Government,"wrote one Puritan leader, "that God Himself has, directly, and immedi-ately, appointed, by any clear Revelation of His Mind and Will, to anyPeople whatever. . . . God Almighty has left it to the natural Reason ofMankind, in every Nation and Country, to set up that Form, which, upona thprow Consideration of the Nature, Temper, Inclinations, Customs,Manners, Business, and other Circumstances of a People, may be thoughtbest for them."64

One constant element in the "nature, temper, and inclination" of per-sons, however, was their sinfulness. Each person, by his or her very na-ture, the Puritans believed, is a fallen, sinful, and depraved creature. Eachperson is inherently tempted by egoism, greed, and corruption. "Sin has ... vitiated the humane Nature," wrote one colonial leader, and driven manto "unruly Lusts," "rampant Passions," and "a constant Endeavour . . . topromote his own, and gratify Self."65

This temptation toward self-indulgence and self-gain was particularlystrong and dangerous among political and ecclesiastical officials. "Power istoo intoxicating and liable to abuse," wrote one Puritan leader.66 Manyofficials succumb to their corrupt natures and "make no other use of theirhigher station, than to swagger over their neighbors, and command theirobsequious flatteries, and enrich themselves with the spoils of which theyare able to pillage them."67 Such official arbitrariness and abuse, the Pu-

M J. Barnard, The Throne Established by Righteousness (1734), reprinted in THE PURITANS,supra note 19, at 273. See also J. Cotton, Subjection to Christ 64 (1657), quoted in 1 C. ANDREWS,THE COLONIAL PERIOD OF AMERICAN HISTORY 455 (1934) ("[I]t is foolish vanity to ask a warrantin Scripture for a [political] form of goverment, for human wisdom may teach this.").

"" J. Barnard, supra note 64, at 272."" P. Whitney, The Transgression of a Land Punished by a Multitude of Rulers 21 (1774)

(available on microprint in Early American Imprints series, Evans No. 13769). See also John Cot-ton's instructions: "It is therefore most wholsome [to institute safeguards so that] Magistrates andOfficers in Church and Common-wealth, never . .. affect more liberty and authority then [sic] will dothem good, and the People good." J. Cotton, An Exposition on the Thirteenth Chapter of the Revela-tion 72 (1655), reprinted in PURITAN POLITICAL IDEAS, supra note 1, at 175. •

87 C. MATHER, supra note 42, at 92.


ritans believed, would inevitably lead to both popular insurrection anddivine sanction. They therefore advocated and adopted a variety of consti-tutional safeguards against autocracy for the state as well as the church.Many of these constitutional safeguards were the prototypes of those writ-ten into state and federal constitutions in the following century.

First, the Puritans insisted that all officials have as "godly a character"as possible, notwithstanding their sin.68 Officials were to be models ofspirituality and morality for the community. They were to be professingmembers of the congregational church and to swear oaths of allegiance toGod and the Bible. They were also to be diligent, upright, respectful,authoritative, and free from guile and graft. "Their very Example," wroteSamuel Willard, "will have the force of a Law in it, and win many by apowerful Attraction, to the avoiding of sin, and practising of Righteous-ness. . . . [T]heir faithful administrations will render them a Terror toEvil Doers, and an Encouragement to them that do well."69

Second, the Puritans insisted that both political and ecclesiastical offi-cials occupy their offices only for limited tenures. Life tenures were toodangerous, the Puritans believed, for they afforded the official the oppor-tunity slowly to convert his office into to an instrument of self-gain andself-aggrandizement. It was safer to limit the official's tenure and requireperiodic rotation of officers.70 Limited tenures became the norm for bothchurch and state governments in New England. Ecclesiastical officialsgenerally served for two- or three-year terms, and then rotated out of of-fice. Political officials generally served one to two year terms, and then ranfor reelection.

Third, the Puritans advocated the development of self-limiting "repub-lican" forms of government for both the church and the state. Rather thanconsolidate all forms of authority in one person or one office, they insistedon separate forms or branches of authority, each checking the sinful ex-cesses of the other. Without such division and diffusion of authority, onepreacher put it, "we shall ultimately find papacy in the church and mon-archy in the state."71 The Puritans adopted this form of government for

"* For an excellent treatment of this point see generally T. BREEN, supra note 28. The mostformal statement of this requirement appears in S. Willard, supra note 41, at 250.

6B S. Willard, supra note 41, at 254 (emphasis in original).70 T. BREEN, supra note 28, at 74-75." B. Higginson, Of Right and Wrong Government 6 (1658). See also S. Willard, supra note


both the church and the state. Church government was divided betweenthe offices of pastor, elder, and deacon. Each office held a distinct respon-sibility in the congregation, and each wielded a measure of authority overthe others.72 Colonial government was; divided, at least roughly, betweenthe executive (administrative), legislative, and judicial offices. Each officehad a distinct responsibility in the commonwealth, and each wielded ameasure of authority over the others.

Fourth, the Puritans adopted a quasi-federalist structure of governmentfor both the church and the state. The church was divided into semi-au-tonomous congregations, each with their own internal structures of pas-toral, pedagogical, and diaconal authority and discipline but each looselyconjoined in a colonial synod. The state was divided into semi-autonomoustown governments, each with their own internal structures of executive,legislative, and judicial authority, but conjoined in a broader colonial gov-ernment. This ecclesiastical and political "federalism" was, to be sure, asmuch a product of social reality as constitutional ideology. The disparatepopulations of the early colonies could not help but remain semi-autono-mous. But in later decades of the seventeenth century, when ecclesiasticaland political centralization was possible and preferred, the apologists offederalism offered firm principled resistance.

Fifth, the Puritans advocated the development of legal codes and clearstatutes so that "magistrates might not proceed according to their discre-tions."73 Early colonial leaders, such as Winthrop and Cotton, had re-sisted such codification. Codified law was, for them, inequitable because itdeprived the magistrate of following "the wisdome and mercy of God aswell as his Justice: as occasion shall require."74 Opponents to discretion,such as Hooker, found this "a course which wants both safety and war-rant, [for] it is a way which leads to tyranny, and so to confusion."76

Proponents of codification prevailed. The Puritans devised elaborate legalcodes and subjected the most minute of daily affairs to close statutory reg-ulation. Among the most famous of such codes was the Laws and Liber-

41, at 251-52; T. HOOKER, supra note 28, at 3-5.78 See Cambridge Synod, supra note 37, at chs. 5-7.7S 1 WINTHROP'S JOURNAL, supra note 16, at 191.74 J. Winthrop, quoted in T. BREEN, supra note 28, at 60.75 T. HOOKER, reprinted in 1 COLLECTIONS OF THE CONNECTICUT HISTORICAL SOCIETY 11

(1860) [hereinafter CONNECTICUT COLLECTIONS]. See generally Miller, Thomas Hooker and theDemocracy of Early Connecticut, 4 NEW ENG. Q. 663 (1931).


ties of Massachusetts (1648), the Connecticut Code of Laws (1650), andthe New Hampshire (Cutt) Code (1680).'i 76

Sixth, the Puritans advocated the "democraticall election" of both polit-ical and ecclesiastical officials. Early colonial leaders, like Winthrop andCotton, opposed democracy as vehemently as they opposed codification."A democratic is ... accounted the meanest & worst of all formes ofGovernmt," Winthrop declared.77 Likewise Cotton argued that democracyis not "a fitt government eyther for church or commonwealth. If a peoplebe governors, who shall be governed."78 Other colonial leaders, however,insisted that "Election is the Foundation of our Government."79 On theone hand, God uses democratic elections to select those officials who willbest maintain the covenantal ideal of the community. Thus "the privilegeof election, which belongs to the people," wrote Hooker, "must not beexercised according to their humours, but according to the blessed will andlaw of God."80 On the other hand, the people use elections to protectthemselves against autocratic, arbitrary, and avaricious rulers. "They whohave the power to appoint [or elect] officers and magistrates, it is in theirpower, also, to set the bounds and limitations of the power and place untowhich they call them."81

Both church and state officials came to be democratically elected in thecolony. Communicant members of the congregation voted by simple ma-jority rule on the pastors, elders, and deacons who served in the church.88

78 The authors of the Laws and Liberties made clear, however, that codification should not leadto sterile conservatism, but that the law should be equitably applied. "(W]e have not published (thiscode] as a perfect body of laws sufficient to carry on the Government established for future times, norcould it be expected that we should promise such a thing. . . . You have called us from amongst therest of our Bretheren and given us power to make these lawes: we must now call upon you to seethem executed: remembring that old & true proverb, The execution of the law is the life of the law."THE LAWS AND LIBERTIES OF MASSACHUSETTS, supra note 50, at page following A2 (emphasis inoriginal).

" 2 R. WINTHROP, LIFE AND LETTERS OF JOHN WINTHROP 430 (1895).78 Quoted in C. ROSSITER, THE FIRST AMERICAN REVOLUTION 90 (rev. ed. 1956). See also T.

LECHFORD, PLAIN DEALING OR, NEWS FROM NEW ENGLAND 143-44 (J. Trumbull ed. 1867).79 W. Hubbard, The Benefit of a Well-Ordered Conversation 25 (1684) (available on microprint

jn Early American Imprints series, Evans No. 362).— ao 1 CONNECTICUT COLLECTIONS, supra note 75, at 20. See also T. HOOKER, supra note 28, at

8-13.81 1 CONNECTICUT COLLECTIONS, supra note 75, at 20.8a Cambridge Synod, supra note 37, at ch. 8. The Platform makes clear elsewhere, however, that

the church cannot be considered a "mere democracy." "This Government of the church, is a mixt


Citizens of the townships and commonwealth voted by simple majorityrule for their respective executive, legislative, and judicial officials.83 Thefranchise limitations were the same for both church and state elections.Only males of the age of majority who were communicant members of thecongregational church could vote. Though by modern standards such limi-tations seem unduly stringent, they were more liberal than those whichthe colonists had encountered in England.84 Between such democracticelections, the Puritans held periodic popular meetings. Town meetingswere convened for officials to give account of their conduct and citizens togive air to their concerns. Congregational meetings were convened for thepurpose of "discussing and resolving of any such doubts & cases of con-science concerning matter of doctrine, or worship, or government of theChurch."86

* * * *

Puritan constitutionalism was a fertile seedbed out of which Americanconstitutionalism grew. Many of the basic constitutional ideas and institu-tions developed by the Puritans in the seventeenth century remainedfirmly in place in the eighteenth century. These ideas and institutionswere advocated and adopted not only in their original forms by Puritansermonizers and political conservatives, but also in vestigial forms by thosewho had claimed no adherence to Puritan beliefs.

Puritan constitutional ideas survived among both the "liberal" and the"republican" schools of the later eighteenth century.86 Liberal writers

Government . . . . In respect of Christ, the head & King of the church, & the Soveraigne powerresiding in him, & exercised by him, it is a Monarchy. In respect of the body, or Brotherhood of thechurch, & powr from Christ graunted unto them, it resembles a Democracy, In respect of the Presbye-try & powr comitted to them, it is an Aristocracy." Id. at 217-18 (emphasis in original).

™ THE LAWS AND LIBERTIES OF MASSACHUSETTS, supra note 50, at 20-21, 50-51.M See generally Haskins, Representative Government and the "Bible Commonwealth" in Early

Massachusetts, 9 AKRON L. REV. 207 (1975); E. MORGAN, THE PURITAN DILEMMA: THE STORYOF JOHN WINTHROP 84-94 (1958). For more specific studies, see Brown, Puritan Democracy inDedham, Massachusetts: Another Case Study, 24 WM. & MARY Q. (3o SER.) 378 (1967); Simmons,Freemanship in Early Massachusetts: Some Suggestions and a Case Study, 19 WM. & MARY Q. (3oSER.) 422 (1962).

85 THE LAWS AND LIBERTIES OF MASSACHUSETTS, supra note 50, at 19.88 For a discussion of the so-called liberal and republican schools of political and constitutional

thought, see, inter alia, G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC,-1776-1787 (1969);


found in the Puritan ideas of natural man and natural law importantsources for their ideas of the state of nature and natural liberty. Theyfound in the Puritan ideas of a social covenant and a political covenantpristine prototypes for their theories of a social contract and a governmen-tal contract. They found in the doctrine of separation of church and statea foundation for their ideas of disestablishment and free exercise of reli-gion.87 Republican writers, by contrast, transformed the Puritan idea ofthe elect nation into a revolutionary theory of American nationalism.They recast the Puritan ideal of the covenant community into a theory ofpublic virtue, discipline, and order. They translated the Puritans' insis-tence on spiritual rebirth and reformation into a general call for "moralreformation" and "republican regeneration."88

Puritan constitutional institutions likewise survived within the new fed-eral and state constitutions of the later eighteenth century. Political rulerswere still required to manifest a moral, virtuous, and godly character.Most officials were required to stand for democratic elections to their of-fices. Political offices usually had limited tenures. Political authority wasdistributed among executive, legislative, and judicial branches, each withauthority to check the others. Federalism was constitutionally prescribed.Liberties of citizens were copiously enumerated. Church and state wereseparated, yet allowed to cooperate.89

Banning, Jeffersonian Ideology Revisited: Liberal and Classical Ideas in the New American Repub-lic, 43 WM. & MARY Q. (3o SER.) 3-19 (1986); Horwitz, Republicanism and Liberalism in Ameri-can Constitutional Thought, 29 WM. & MARY L. REV. 57 (1987); Ross, The Liberal TraditionRevisited and the Republican Tradition Addressed, in NEW DIRECTIONS IN AMERICAN INTELLEC-TUAL HISTORY 116 (J. Higham & P. Conkin eds. 1979).

87 See generally B. BAILYN, supra note 6, at 32-34, 161-229, 246-72.88 See G. WOOD, supra note 86, at 107-24.89 See, e.g., P. SMITH, RELIGIOUS ORIGINS OF THE AMERICAN REVOLUTION 7 (1976) ("The

Federal Constitution was, in effect, an effort to reconcile on the practical political level original sinand Christian Utopianism. In this context the Declaration of Independence appears as the classicpolitical credo of a Utopianism whose Christian antecedents are plainly discernible."); R. HOF-STADTER, THE AMERICAN POLITICAL TRADITION 3 (1948) ("The men who drew up the Constitu-tion in Philadelphia during the summer of 1787 had a vivid Calvinistic sense of human evil anddamnation.") 1 J. BRYCE, THE AMERICAN COMMONWEALTH 299 (1889) ("Some one has said thatthe American Government and Constitution are based on the theology of Calvin and the philosophy ofHobbes. This at least is true, that there is a hearty Puritanism in the view of human nature whichpervades the instrument of 1787. It is the work of men who believed in original sin, and were resolvedto leave open for transgressors no door which they could possibly shut. Compare this spirit with theenthusiastic optimism of the Frenchman of 1789. It is not merely a difference of race temperaments; itis a difference of fundamental ideas.").


The great German ethicist Carl Schmitt once wrote that "all the preg-nant ideas and institutions of modern political thought are in essence secu-larized forms of theological doctrines and institutions."90 The evolution ofearly American constitutionalism lends credence to Schmitt's thesis. Manyof the constitutional and political ideas of the eighteenth-century liberalsand republicans were essentially secularized forms of Puritan antecedentsand analogues. Many state and federal constitutional institutions arerooted and reflected the ethic and experience of the Puritans.

C. SCHMITT, POLITISCHE THEOLOGIE 32 (1916).

how to govern a city on the hill: the early puritan contribution to american constitucionalism

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