Sparks Commentary: The “Fundamental Orders of Connecticut” may be the world’s first written constitution

“I pass over the constitutions of Rhode Island and Connecticut, because they were formed prior to the Revolution, and even before the principle under examination had become an object of political attention.”

– James Madison, in the Federalist Papers (Federalist No. 47)

Some consider this document to be the world’s first written constitution

The United States Constitution was the first written constitution for an entire nation. But there were actually several state constitutions that came before it, which were mostly found in the thirteen colonies that became the early United States. They already had functioning democracies by the time they declared their independence in 1776, and had more than a century of democratic experience by this time. Although the writers of the Constitution would also draw upon the experiences of Greece and Rome (not to mention Great Britain), they would also be drawing upon their own experience as well, and upon the constitutions of their own states. Some would consider the world’s first “constitution” (in the modern Western sense of that word) to be the “Fundamental Orders of Connecticut,” a document that was written in 1639 – nearly a century and a half before the United States Constitution was written in 1787. Some would dispute the claim that the Fundamental Orders of Connecticut were truly the world’s first constitution, I should note here, and I suppose it depends somewhat upon how you define this word. But however you define it, it would nonetheless seem fair to say that the “Fundamental Orders of Connecticut” were groundbreaking; and that they were a considerable influence on the United States Constitution.

It was only twenty years earlier that the Mayflower Compact had been signed in 1620 …

It was only twenty years before this time that the famous ship the Mayflower had landed at Plymouth Rock, in 1620. Its passengers would sign a document called the “Mayflower Compact” before they had even gone ashore, while their ship was still anchored in the bay of Cape Cod. This document was a sort of social contract for the future inhabitants of Plymouth, and it might be appropriate to briefly review some of this document here, before going into the later provisions of the “Fundamental Orders of Connecticut.” The “Mayflower Compact” begins, for example, by saying that “IN THE NAME OF GOD, AMEN. We, whose names are underwritten, the Loyal Subjects of our dread Sovereign Lord King James” (Source: Mayflower Compact) – and hence follow several titles of the king, which I will not elaborate on here. Continuing on, the document says that “Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a Voyage to plant the first Colony in the northern Parts of Virginia; Do by these Presents, solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid” (Source: Mayflower Compact)

The Mayflower in Plymouth Harbor

… which was a social contract for the Colony of Plymouth

Thus, the Mayflower Compact was basically a sort of social contract, which broke new ground for the American colonies. Many years before the writings of John Locke, the Mayflower Compact was creating “a civil Body Politick, for [their] better Ordering and Preservation.” (Source: Mayflower Compact) Their compact added some legislative clauses, by saying that “by Virtue hereof [we] do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions, and Officers, from time to time, as shall be thought most meet and convenient for the general Good of the Colony; unto which we promise all due Submission and Obedience.” (Source: Mayflower Compact) Thus, the Mayflower Compact was a true democratic document. The people could influence their own laws, I should make clear, as long as they promised to render “all due Submission and Obedience” to these laws that they would make.

Signing the Mayflower Compact, 1620

The “Fundamental Orders of Connecticut” (passed 1639) were likewise a social contract

Now to the Fundamental Orders of Connecticut: Nineteen years after the Mayflower Compact, the Fundamental Orders were signed in 1639. Continuing the tradition of documents like the Mayflower Compact, the Fundamental Orders of Connecticut were a social contract that influenced many others after them. They began, for example, by saying that “we the Inhabitants and Residents of Windsor, Hartford and Wethersfield are now cohabiting and dwelling in and upon the River of Connectecotte and the lands thereunto adjoining” (Source: Preamble). They continued: Since the word of God “requires that … 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 as followeth” (Source: Preamble). A later section in the document added that the deputies shall have the power “to give their votes and allowance to all such laws and orders as may be for the public good, and unto which the said Towns are to be bound.” (Source: Section 8) Thus, the Fundamental Orders of Connecticut were another great social contract, under which a democratic form of government would be upheld.

United States Constitution

They specified procedures for the election of a Governor (and other magistrates)

The Fundamental Orders of Connecticut also commented on how the Governor (and other magistrates) were to be elected in this colony. It said, for example, that “the election of the aforesaid Magistrates shall be in this manner: every person present and qualified for choice shall bring in (to the person deputed to receive them) one single paper with the name of him written in it whom he desires to have Governor, and that he that hath the greatest number of papers shall be Governor for that year.” (Source: Section 2) Furthermore, “the rest of the Magistrates or public officers [were] to be chosen” in another manner (Source: Section 2), which I will not quote in its entirety here. The orders also said that if the deputies (or “the greatest part of them”) find any election to be “illegal,” they may “seclude such for present from their meeting, and return the same and their reasons to the Court; and if it be proved true, the Court may fine the party or parties so intruding, and the Town, if they see cause, and give out a warrant to go to a new election in a legal way, either in part or in whole.” (Source: Section 9) Like the Fundamental Orders of Connecticut, the United States Constitution would also spell out very specific procedures for how the highest-ranking authority in the executive branch was to be elected; even if the procedures were slightly different from those found in the Fundamental Orders of Connecticut.

John Winthrop, who delivered the Fundamental Orders of Connecticut to London (later Governor of the Connecticut Colony)

If the magistrates don’t call a court, the freemen shall “petition” them to do so

As far as the judicial system went, the Fundamental Orders of Connecticut also specified procedures for courts as well. For example, they said that “if the Governor and major part of Magistrates shall either neglect or refuse to call the two General standing Courts or either of them, as also at other times when the occasions of the Commonwealth require, the Freemen thereof, or the major part of them, shall petition to them so to do; if then it be either denied or neglected, the said Freemen, or the major part of them, shall have the power to give order to the Constables of the several Towns to do the same, and so may meet together, and choose to themselves a Moderator, and may proceed to do any act of power which any other General Courts may.” (Source: Section 6) Like the Fundamental Orders quoted here, the United States Constitution would also spell out very specific procedures for how federal courts were to be created and constituted (even if these procedures were slightly different from those found in the Fundamental Orders of Connecticut).

In the said general courts shall consist the “supreme power of the Commonwealth”

The Fundamental Orders of Connecticut also commented on the courts further, when it said that the deputies “shall have power and liberty to appoint a time and a place of meeting together before any General Court, to advise and consult of all such things as may concern the good of the public” (Source: Section 9). They also said that in the “said General Courts shall consist the supreme power of the Commonwealth, and they only shall have power to make laws or repeal them, to grant levies, to admit of Freemen, dispose of lands undisposed of, to several Towns or persons, and also shall have power to call either Court or Magistrate or any other person whatsoever into question for any misdemeanor, and may for just causes displace or deal otherwise according to the nature of the offense; and also may deal in any other matter that concerns the good of this Commonwealth, except election of Magistrates, which shall be done by the whole body of Freemen.” (Source: Section 10)

Procedures for taxation, and the decisions about how these burdens are to be distributed

As far as the legislative power went, the Fundamental Orders of Connecticut had some clear references to taxation, which I will quote next. These references said that “when any General Court upon the occasions of the Commonwealth [shall] have agreed upon any sum, or sums of money to be levied upon the several Towns within this Jurisdiction, that a committee be chosen to set out and appoint what shall be the proportion of every Town to pay of the said levy, provided the committee be made up of an equal number out of each Town.” (Source: Section 11) Like the Fundamental Orders of Connecticut, the United States Constitution would also grant taxing powers explicitly as a part of the social contract (even if they would do so in a slightly different way).

Conclusion: State constitutions (including this one) had a great influence for good

There were several state constitutions that influenced the United States Constitution, and the Federalist Papers would contain many references to them within its pages. (These included the Constitution of Massachusetts, written principally by John Adams in 1779 - and then ratified in 1780.) These constitutions at the state level were quite popular with the people when the Constitution was first written, at a time when the people of America still distrusted the proposed federal Constitution. Some, for example, thought that the proposed federal Constitution was “too much of a departure” from the prior traditions of these states. They may have been wrong on this point, since the few departures that the federal Constitution genuinely made in these matters seem to have been for good reasons as a general rule. But the people of this time were right to hold their state traditions in such high regard, because they had been a potent protection against infringements on their rights and liberties. Possibly the first of these constitutions ever was the “Fundamental Orders of Connecticut,” which blazed new ground in the science of written constitutions.

Footnote to this blog post:

The Fundamental Orders of Connecticut also said that “the said deputies shall have power to fine any that shall be disorderly at their meetings, or for not coming in due time or place according to appointment” (Source: Section 9) This would influence the parts of the Constitution about the ability of Congress to regulate itself.

For example, the United States Constitution would say that a smaller number of members from each house “may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.” (Source: Article 1, Section 5, Paragraph 1) And the Constitution also says that “Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” (Source: Article 1, Section 5, Paragraph 2)

Both houses of Congress thus have some power to regulate themselves under the Constitution, just as the assemblies in the Fundamental Orders of Connecticut could do.

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