9 - Constitutional Protection of the Freedom of Conscience in Colonial America: The Rhode Island and Pennsylvania Experiments

Summary

INTRODUCTION

It is now clear that an important source of modern constitutionalism, including, eventually, the protection of freedom of conscience and other rights, were the colonial covenants and compacts established by Anglo-American Puritans in the seventeenth century. Whatever their other differences, American Puritans “in their towns and congregations” were of one mind that “the crucial feature of all covenants” is “a people's willing consent,” that “covenant [is thus an] instrument and expression of popular decision-making.”

According to a leading authority, the Charter of Massachusetts Bay of 1629 “was not strictly a popular constitution, because it was in form and legal effect a royal grant, but in its practical operation after the transfer, it approximated a popular constitution more closely than any other instrument of government in actual use up to that time in America or elsewhere in modern times.” The Puritan authorities went well beyond the original wording, claiming that their charter permitted an astounding degree of political independence. As early as 1641, they refused help from the English Parliament because the colony might “then be subject to all such laws as [the Parliament] should make or at least such as [it] might impose upon us.” When in 1646 the authorities were criticized for considering themselves “rather a free state than a colony or corporation of England,” they agreed! Parliament might have authority in England, but “the highest authority here is in [our legislature], both by our charter and by our own positive laws…. Our allegiance binds us not to the laws of England any longer than we live in England,” an interpretation applying to the charters and compacts of the other colonies, as well. Though the colonials were slow to admit it, it was not a large step to the eventual replacement of the authority of the English Crown, as well as of Parliament, with the will of “the people” who inhabited the colonies.

A critical part of these early constitutions was the declarations of rights that were included. The Body of Liberties, adopted by the Massachusetts Bay legislature in 1641, amounted to an exceptionally lengthy list of fundamental rights. Though it incorporated provisions from English statutes and precedents, it went well beyond them.