FOOTNOTES:
[87] The editor cannot resist the desire to add that rarely in all history has so fundamental, and at the same time so revolutionary, a truth been stated so simply and incontrovertibly.
[XVI. CONNECTICUT BEFORE 1660]
93. The Fundamental Orders of 1639
January 14/24, 1638/9
Connecticut Colonial Records, I, 20-25.
Cf. American History and Government, §§ 87-89, for the history and significance of this "first written constitution known to history that created a government." The document is printed here in full.
Forasmuch as it hath pleased the Allmighty God by the wise disposition of his divyne providence so to Order and dispose of things that we the Inhabitants and Residents of Windsor, Harteford and Wethersfield are now cohabiting and dwelling in and uppon the River of Conectecotte and the Lands thereunto adjoyneing; And well knowing where a people are gathered togather the word of God requires that to mayntayne the peace and union of such a people there should be an orderly and decent Goverment established according to God, to order and dispose of the affayres of the people at all seasons as occation shall require; doe therefore assotiate and conjoyne our selves to be as one Publike State or Commonwelth; and doe, for our selves and our Successors and such as shall be adjoyned to us att any tyme hereafter, enter into Combination and Confederation togather, to mayntayne and presearve the liberty and purity of the gospell of our Lord Jesus which we now professe, as also the disciplyne of the Churches, which according to the truth of the said gospell is now practised amongst us; As also in our Civell Affaires to be guided and governed according to such Lawes, Rules, Orders and decrees as shall be made, ordered and decreed, as followeth:—
1. It is Ordered, sentenced and decreed, that there shall be yerely two generall Assemblies or Courts, the on [one] the second thursday in Aprill, the other the second thursday in September, following; the first shall be called the Courte of Election, wherein shall be yerely Chosen from tyme to tyme soe many Magestrats and other publike Officers as shall be found requisitte: Whereof one to be chosen Governour for the yeare ensueing and untill another be chosen, and noe other Magestrate to be chosen for more than one yeare; provided allwayes there be sixe chosen besids the Governour; which being chosen and sworne according to an Oath recorded for that purpose shall have power to administer justice according to the Lawes here established, and for want thereof according to the rule of the word of God; which choise shall be made by all that are admitted freemen and have taken the Oath of Fidellity, and doe cohabitte within this Jurisdiction, (having beene admitted Inhabitants by the major part of the Towne wherein they live,) or the major parte of such as shall be then present.
2. It is Ordered, sentensed and decreed, that the Election of the aforesaid Magestrats shall be on this manner: every person present and quallified for choyse shall bring in (to the persons deputed to receave them) one single paper with the name of him written in yt whom he desires to have Governour, and he that hath the greatest number of papers shall be Governor for that yeare. And the rest of the Magestrats or publike Officers to be chosen in this manner: The Secretary for the tyme being shall first read the names of all that are to be put to choise and then shall severally nominate them distinctly, and every one that would have the person nominated to be chosen shall bring in one single paper written uppon, and he that would not have him chosen shall bring in a blanke: and every one that hath more written papers then blanks shall be a Magistrat for that yeare; which papers shall be receaved and told by one or more that shall be then chosen by the court and sworne to be faythfull therein; but in case there should not be sixe chosen as aforesaid, besids the Governor, out of those which are nominated, then he or they which have the most written papers shall be a Magestrate or Magestrats for the ensueing yeare, to make up the foresaid number.
3. It is Ordered, sentenced and decreed, that the Secretary shall not nominate any person, nor shall any person be chosen newly into the Magestracy which was not propownded in some Generall Courte before, to be nominated the next Election; and to that end yt shall be lawfull for ech of the Townes aforesaid by their deputyes to nominate any two whom they conceave fitte to be put to Election; and the Courte may ad so many more as they judge requisitt.
4. It is Ordered, sentenced and decreed that noe person be chosen Governor above once in two yeares, and that the Governor be alwayes a member of some approved congregation, and formerly of the Magestracy within this Jurisdiction; and all the Magestrats Freemen of this Commonwelth: and that no Magestrate or other publike officer shall execute any parte of his or their Office before they are severally sworne, which shall be done in the face of the Courte if they be present, and in case of absence by some deputed for that purpose.
5. It is Ordered, sentenced and decreed, that to the aforesaid Courte of Election the severall Townes shall send their deputyes, and when the Elections are ended they may proceed in any publike searvice as at other Courts. Also the Generall Courte in September shall be for makeing of lawes, and any other publike occation, which conserns the good of the Commonwelth.
6. It is Ordered, sentenced and decreed, that the Governor shall, ether by himselfe or by the secretary, send out summons to the Constables of every Towne for the cauleing of these two standing Courts, on [one] month at lest before their severall tymes: And also if the Governor and the gretest parte of the Magestrats see cause uppon any spetiall occation to call a generall Courte, they may give order to the secretary soe to doe within fowerteene dayes warneing; and if urgent necessity so require, uppon a shorter notice, giveing sufficient grownds for yt to the deputyes when they meete, or els be questioned for the same; And if the Governor and [major] parte of Magestrats shall ether neglect or refuse to call the two Generall standing Courts or ether of them, as also at other tymes when the occations of the Commonwelth require, the Freemen thereof, or the Major parte of them, shall petition to them soe to doe: if then yt be ether denyed or neglected the said Freemen or the Major parte of them shall have power to give order to the Constables of the severall Townes to doe the same, and so may meete togather, and chuse to themselves a Moderator, and may proceed to do any Acte of power, which any other Generall Courte may.
7. It is Ordered, sentenced and decreed that after there are warrants given out for any of the said Generall Courts, the Constable or Constables of ech Towne shall forthwith give notice distinctly to the inhabitants of the same, in some Publike Assembly or by goeing or sending from howse to howse, that at a place and tyme by him or them lymited and sett, they meet and assemble them selves togather to elect and chuse certen deputyes to be at the General Courte then following to agitate the afayres of the commonwelth; which said Deputyes shall be chosen by all that are admitted Inhabitants in the severall Townes and have taken the oath of fidellity; provided that non be chosen a Deputy for any Generall Courte which is not a Freeman of this Commonwelth.
The foresaid deputyes shall be chosen in manner following: every person that is present and quallified as before expressed, shall bring the names of such, written in severall papers as they desire to have chosen for that Imployment, and these 3 or 4, more or lesse, being the number agreed on to be chosen for that tyme, that have greatest number of papers written for them shall be deputyes for that Courte; whose names shall be endorsed on the backe side of the warrant and returned into the Courte, with the Constable or Constables hand unto the same.
8. It is Ordered, sentenced and decreed, that Wyndsor, Hartford and Wethersfield shall have power, ech Towne, to send fower of their freemen as their deputyes to every Generall Courte; and whatsoever other Townes shall be hereafter added to this Jurisdiction, they shall send so many deputyes as the Courte shall judge meete, a resonable proportion to the number of Freemen that are in the said Townes being to be attended therein; which deputyes shall have the power of the whole Towne to give their voats and alowance to all such lawes and orders as may be for the publike good, and unto which the said Townes are to be bownd.
9. It is ordered and decreed, that the deputyes thus chosen shall have power and liberty to appoynt a tyme and a place of meeting togather before any Generall Courte to advise and consult of all such things as may concerne the good of the publike, as also to examine their owne Elections, whether according to the order, and if they or the gretest parte of them find any election to be illegall they may seclud such for [the] present from their meeting, and returne the same and their resons to the Courte; and if yt prove true, the Courte may fyne the party or partyes so intruding and the Towne, if they see cause, and give out a warrant to goe to a newe election in a legall way, either in parte or in whole. Also the said deputyes shall have power to fyne any that shall be disorderly at their meetings, or for not comming in due tyme or place according to appoyntment; and they may returne the said fynes into the Courte if yt be refused to be paid, and the Tresurer to take notice of yt, and to estreete or levy the same as he doth other fynes.
10. It is Ordered, sentenced and decreed, that every Generall Courte, except such as through neglecte of the Governor and the greatest parte of Magestrats the Freemen themselves doe call, shall consist of the Governor, or some one chosen to moderate the Court, and 4 other Magestrats at lest, with the major parte of the deputyes of the severall Townes legally chosen; and in case the Freemen or major parte of them, through neglect or refusall of the Governor and major parte of the magestrats, shall call a Courte, it shall consist of the major parte of Freemen that are present or their deputyes, with a Moderator chosen by them: In which said Generall Courts shall consist the supreme power of the Commonwelth, and they only shall have power to make lawes or repeale them, to graunt levyes, to admitt of Freemen, dispose of lands undisposed of, to severall Townes or persons, and also shall have power to call ether Courte or Magestrate or any other person whatsoever into question for any misdemeanour, and may for just causes displace or deale otherwise according to the nature of the offence; and also may deale in any other matter that concerns the good of this commonwelth, excepte election of Magestrats, which shall be done by the whole boddy of Freemen.
In which Courte the Governour or Moderator shall have power to order the Courte, to give liberty of spech, and silence unceasonable and disorderly speakeings, to put all things to voate, and in case the vote be equall to have the casting voice. But non of these Courts shall be adjorned or dissolved without the consent of the major parte of the Court.
11. It is ordered, sentenced and decreed, that when any Generall Courte uppon the occations of the Commonwelth have agreed uppon any summe or sommes of mony to be levyed uppon the severall Townes within this Jurisdiction, that a Committee be chosen to sett out and appoynt what shall be the proportion of every Towne to pay of the said levy, provided the Committees be made up of an equall number out of each Towne.
[Hints for Study.—1.—This was a great democratic constitution,—the first that ever "created a state." As a whole, it is an innovation; but very few passages in it, taken by themselves, are new. The great bulk of the Orders came from Massachusetts' practice of the preceding five years (1634-1638), and most of it came, indeed, from express statutes of the older colony. Its peculiar democracy consisted in (1) selecting all the democratic features of the Massachusetts government (leaving out all the more aristocratic features), and (2) in adding a very few other democratic features, some of which these men had striven for in vain in Massachusetts.
a. For instances of selection:
(Article 1.) Massachusetts, during most of her history, had had "two General Courts," the Spring Court being a "Courte of Election," in which all magistrates were chosen for one year only.
(Articles 1, 2, 7, 9.) All the details of the elections of governor, magistrates, and town deputies, come from Massachusetts' practice in the years 1635-1638, as did also the provision for preliminary caucusing by the deputies with control over their separate meetings.
Articles 5 and 10 may be compared with the democratic legislation of Massachusetts in 1634 (No. 67 b (2), above).
Many minor resemblances will occur to the advanced student familiar with Massachusetts history.
b. Provisions which the democrats had wanted, but failed to secure, in Massachusetts: ineligibility of the governor for immediate reëlection (Article 4), and the method of nomination (Article 3; adopted also in Massachusetts two years later).
c. Democratic innovations: (1) making the sessions of the legislature independent of the will of the executive (Articles 6 and 10). Massachusetts had made the General Court master of its own adjournment but not of its meetings. Both the provisions were adopted by the Long Parliament in England two years later. (2) Leaving the franchise to be determined practically by the towns.
2.—Connecticut did not reject theocracy. Cf. the preamble and the eligibility provision for the governorship. In practice, too, the colony maintained a close union of Church and State. The restriction of the franchise to church members was rejected, not because it was theocratic, but because it was undemocratic.]
[XVII. THE NEW ENGLAND CONFEDERATION]
94. The Constitution
The text is printed in the New Haven Colonial Records and in the Plymouth Colony Records (IX). For the history of the formation of the Confederation, see American History and Government, §§ 90, 91.
ARTICLES
OF
Confederation betwixt the Plantations under the Government of the Massachusetts, the Plantations under the Government of Plimouth, the Plantations under the Government of Connectecut, and the Government of New Haven, with the Plantations in Combination therewith.
Whereas we all came into these parts of America, with one and the same end and ayme, namely, to advance the Kingdome of our Lord Jesus Christ, and to enjoy the liberties of the Gospel, in purity with peace; and whereas in our settling (by a wise providence of God) we are further dispersed upon the Sea-Coast, and Rivers, then was at first intended, so that we cannot (according to our desire) with convenience communicate in one Government, and Jurisdiction; and whereas we live encompassed with people of severall Nations, and strange languages, which hereafter may prove injurious to us, and our posterity: And forasmuch as the Natives have formerly committed sundry insolencies and outrages upon severall Plantations of the English, and have of late combined against us. And seeing by reason of the sad distractions in England, which they have heard of, and by which they know we are hindred both from that humble way of seeking advice, and reaping those comfortable fruits of protection which, at other times, we might well expect; we therefore doe conceive it our bounden duty, without delay, to enter into a present Consotiation amongst our selves, for mutuall help and strength in all our future concernments, that, as in Nation, and Religion, so, in other respects, we be, and continue, One, according to the tenour and true meaning of the ensuing Articles.
I. Wherefore it is fully Agreed and Concluded by and between the parties, or Jurisdictions above named, and they doe joyntly and severally by these presents agree and conclude, That they all be, and henceforth be called by the name of, The United Colonies of New-England.
II. The said United Colonies for themselves, and their posterties doe joyntly and severally hereby enter into a firm and perpetuall league of friendship and amity, for offence and defence, mutuall advice and succour, upon all just occasions, both for preserving and propagating the truth, and liberties of the Gospel, and for their own mutuall safety, and wellfare.
III. It is further agreed, That the Plantations which at present are, or hereafter shall be settled within the limits of the Massachusets, shall be forever under the Government of the Massachusets. And shall have peculiar Jurisdiction amongst themselves, as an intire body; and that Plimouth, Connecticut, and New-Haven, shall each of them, in all respects, have the like peculiar Jurisdiction, and Government within their limits....
IV. It is also by these Confederates agreed, That the charge of all just Wars, whether offensive, or defensive, upon what part or Member of this Confederation soever they fall, shall both in men, provisions, and all other disbursements, be born by all the parts of this Confederation, in different proportions, according to their different abilities, in manner following, namely, That the Commissioners for each Jurisdiction, from time to time, as there shall be occasion, bring a true account and number of all the Males in each Plantation, or any way belonging to, or under their severall Jurisdictions, of what quality, or condition soever they be, from sixteen years old, to threescore, being inhabitants there. And that according to the different numbers, which from time to time shall be found in each Jurisdiction, upon a true, and just account, the service of men, and all charges of the war, be born by the poll: Each Jurisdiction, or Plantation, being left to their own just course, and custome, of rating themselves, and people, according to their different estates, with due respect to their qualities and exemptions among themselves, though the Confederation take no notice of any such priviledge. And that, according to the different charge of each Jurisdiction, and Plantation, the whole advantage of the War (if it please God so to blesse their endeavours) whether it be in Lands, Goods, or persons, shall be proportionably divided among the said Confederates.
V. It is further agreed, That if any of these Jurisdictions, or any Plantation under, or in Combination with them, be invaded by any enemy whomsoever, upon notice, and request of any three Magistrates of that Jurisdiction so invaded, The rest of the Confederates, without any further meeting or expostulation, shall forthwith send ayde to the Confederate in danger, but in different proportion, namely the Massachusets one hundred men sufficiently armed, and provided for such a service, and journey. And each of the rest five and forty men, so armed and provided, or any lesse number, if lesse be required, according to this proportion. ... But none of the Jurisdictions to exceed these numbers, till by a meeting of the Commissioners ... a greater ayde appear necessary....
VI. It is also agreed, That for the managing and concluding of all affaires proper to, and concerning the whole Confederation, two Commissioners shall be chosen by, and out of the foure Jurisdictions, namely two for the Massachusets, two for Plimouth, two for Connecticut, and two for New-haven, being all in Church-fellowship with us, which shall bring full power from their severall generall Courts respectively, to hear, examine, weigh, and determine all affaires of war, or peace, leagues, aydes, charges, and numbers of men for war, division of spoyles, or whatsoever is gotten by conquest, receiving of more confederates, or Plantations into Combination with any of these Confederates, and all things of like nature, which are the proper concomitants, or consequences of such a Confederation, for amity, offence, and defence, not intermedling with the Government or any of the Jurisdictions, which by the third Article, is preserved entirely to themselves. But if these eight Commissioners when they meet, shall not all agree, yet it is concluded, That any six of the eight agreeing, shall have power to settle and determine the businesse in question. But if six doe not agree, that then such Propositions, with their Reasons, so far as they have been debated, be sent, and referred to the foure Generall Courts, viz. The Massachusetts, Plymouth, Connectecut, and New-haven. ... It is further agreed, That these eight Commissioners shall meet once every year, besides extraordinary meetings, according to the fifth Article to consider, treat, and conclude of all affaires belonging to this Confederation, which meeting shall ever be the first Thursday in September. [Provision for meeting at the several capital cities in rotation.]
VII. It is further agreed, That at each meeting of these eight Commissioners, whether ordinary or extraordinary; they all, or any six of them agreeing as before, may choose their President out of themselves ... [to secure] a comely carrying on of all proceedings in the present meeting. But he shall be invested with no such power or respect, as by which, he shall hinder the propounding or progresse of any businesse, or any way cast the scales, otherwise then in the precedent Article is agreed.
VIII. It is also agreed, That the Commissioners for this Confederation hereafter at their meetings, whether ordinary or extraordinary, as they may have Commission or opportunity, doe endeavour to frame and establish Agreements and Orders in generall cases of a civil nature, wherein all the Plantations are interested, for preserving peace amongst themselves, and preventing (as much as may be) all occasions of war, or differences with others, as about the free and speedy passage of Justice in each Jurisdiction, to all the Confederates equally, as to their own, receiving those that remove from one Plantation to another, without due Certificates, how all the Jurisdictions may carry it towards the Indians, that they neither grow insolent, nor be injured without due satisfaction, least War break in upon the Confederates, through such miscarriages. It is also agreed, That if any Servant run away from his Master, into any other of these Confederated Jurisdictions, That in such case, upon the Certificate of one Magistrate in the Jurisdiction, out of which the said Servant fled, or upon other due proof, the said Servant shall be delivered either to his Master, or any other that pursues, and brings such Certificate, or proof. And that upon the escape of any Prisoner whatsoever, or fugitive, for any Criminall Cause, whether breaking Prison, or getting from the Officer, or otherwise escaping, upon the Certificate of two Magistrates of the Jurisdiction out of which the escape is made, that he was a prisoner or such an offendor, at the time of the escape, the Magistrates of that Jurisdiction where for the present the said prisoner or fugitive abideth, shall forthwith grant such a Warrant as the case will bear, for the apprehending of any such person, and the delivery of him into the hand of the person who pursueth him....
[IX. No one of the confederates to engage in any (offensive) war, without the vote of the commissioners, "as in the sixth Article is provided.">[
XI. It is further agreed, That if any of the Confederates shall hereafter break any of these presents Articles, or be any other way injurious to any one of the other Jurisdictions, such breach of Agreement, or injury, shalbe duly considered and ordered by the Commissioners for the other Jurisdictions, that both peace, and this present Confederation, may be intirely preserved without violation.
Lastly, this perpetuall Confederation, and the severall Articles and Agreements thereof, being read and seriously considered, [statement of subscription by authority of the respective confederate governments.]
95. Massachusetts Demands More Weight
Plymouth Colony Records, I, 16-17, 118-120, 126-128.
(1) At a meetinge of the Commissioners for the united Colonies in New England at Hartford the fift of September 1644
... The Commissioners for the Massachusetts mooved that a due order might be attended in the subscriptions of the Acts and determinacions of this and any future meetings of the Commissioners for the united Colonies, and expressed not onely their owne apprehensions but the judgment of their generall Court, That by the Articles of Confederacion the first place did of Right belong to the Massachusetts, as being first named and so the other Colonies in like order. Which being taken into consideracion, and the Articles of Confederacion read, It appeared evidently to the Comissioners that no such priviledge had beene ever ... graunted ... by the Comissioners for the Jurisdicions in either of their former meetings, and yet the first subscription was made in the presence of the generall Court of the Massachusetts. And to prevent future inconvenience upon this occation, they thought fitt to declare that this Commission is free and may not receive any thing (not expresly agreed in the Articles) as imposed by any generall Court; yet out of their respects to the Government of the Massachusetts they did willingly graunt that their Comissioners [those of Massachusetts] should first subscribe after the President in this and all future meetings, and the Comissioners for the other Colonies in such order as they are named in the Articles; viz., Plymouth, Conectacutt, and New Haven.
(2) At a Meting of the Commissioners of the United colonyes of New England: held at New Plymouth the 7th, 7th, 1648
... the Comissioners for the Matathusetts presented to the Comissioners of the other Colonyes a writeing from a Comitee of theire Generall Courte desiering that a dew Consideracion may bee had thereof, in answer to the Severall pticulers. The wrighting is as Followeth....
"Wheareas in Cace sixe of the Comissioners shall not agree the Cause is to be refered to the fouer Generall Courtes, and by theire Joynte agrements to be determined, etc.,—to be considered if it were not more expedient to bee determined upon the agrement of any three of them....
"Wheareas by the .6. Article each of the Colonyes is to have two Comissioners, and the Colony of the Matathusetts beares almost five for one in the proportion of Charge with any one of the rest, they desier to have one Comissioner more; or otherwise they shall be content that any other of the Colonyes shall have the same priviledg to have three Comissioners to the other twoe, if such Colonyes will beare the Licke proporcion of Chardg with the Matathusetts. ..."
The Comissioners having perused and with dew Respect Considered the former proposicions....
In caces proper to the Comissioners wheareas by the sixth article, if sixe Agree not, the proposicions with the Reasons are to be Refered to the Fower Generall Courts: the Comissioners aproveing the Mocion made by the Comity of the Masachusets doe recomend it to the Fower Generall Courts that, if any ... three of the saide Courts agree ... of any such proposicion, it shall passe and bee accoumpted as the Conclusion of the united Colonyes, as it should have passed as ane act of the Comissioners if sixe of them had consented: For the 5th, sixth and seventh proposicions presented from the Comissioners of the Masachusetts, Importeing a reall Chang in the tearmes and Covenants of Confideration,—as noe alteracion Can bee made without the Consent of all and each of the Generall Courts, soe the Comissioners Feare that any of the Alteracions mencioned would prove dangerous and Inconvenient to all or som of the Colonyes. The tacken [taking] of the Number of malles they hope need not bee frequent; Nor, as it hath been Caryed by the Comissioners, inconvenient. In point of the seventh proposicion they Conscaive there is a mistack: the Lardge trade of the Masachusets, besides theire Numbers, afford many advantages in Reference to estates which the other Colonyes wante; but (it is from the Free grace of god that all and each have what they have) they diser [them] to bee thainkefull.
96. Nullification by Massachusetts
Plymouth Colony Records, X, 74-76. Cf. American History and Government, § 93. The following extracts from a declaration of the Massachusetts General Court put an end to the attempt of the other three colonies in the New England Confederation to force Massachusetts to join in a war against New Netherlands.
The question propounded by the General Court of the Massachusetts [June 2/12, 1653].
... Whether the Comissioners of the united Collonies have power by articles of agreement to determine the Justice of an offencive or vindictive warr and to engage the Collonies therin;
The Answare of the Committies to the question,—first more particularly from the Articles:
The whole power of Government and Jurisdiction is in the 3d and sixt Articles refered to every Collonie whoe sawe not meet to divest themselves of theire authoritie to Invest the Comissioners with any part therof being altogether unsafe and unnessesary to attaine the end of the Confeaderation;
The 9. and 10th Articles constituteth the Comissioners Judges of the Justice of a defencive warr
The 4th and 5th settle Rules for Leagues, Aides, and number in a defencive warr, and devisions of spoiles; but noe where provide for the determination of the Justice of an offencive warr, which therfore is refered wholy to the Determination of the Supreame Power of the severall Confeaderate Jurisdictions, whoe would have otherwise provided in the case.
The sixt Article, which att first view seemes to Inable the Comissioners, will evidently evince the Contrary. For, the Confederation being betwixt the Collonies, the 4th, and fift, 9, and 10th Articles provid Rules in severall Cases according to which the Confeaderates have bound themselves to Acte; And the sixt Article onely orders and appoints whoe and in what mannor the said Rules and agreements should bee executed viz. by Comissioners Improved to acte in cases specif[y]ed and regulated,—for theire number, mannor of proceeding, times and places of meeting, in the sixt and seaventh Articles; And that by nessesitie; because the supreame power of the severall Jurisdictions Could not assemble, they were enforced to Substitute deligates to order such things as were of present and urgent Nessesitie, or meerly prudenciall or polliticall or of Inferior nature, and that according to themselves [the Rules] prescribed by the Confeaderates. But such things [as] require the Choise Actes of Authoritie; or [are] in theire nature of Morrall Consideration and may admite of more time of Deliberation (as an offencive warr), The Wisdome of the Countrivers of the Confederacy did not Judg meete to Refere to Comissioners, and therfore [they] have not provided any Rules in such cases in these Consernments as they did in all cases of an Inferior nature;
More Generally:[88] The Comissioners of the united Collonies are not, soe fare as wee can deserne, Invested with power to Conclude an offencive warr to engage the Collonies to which they belonge to put the same in execution further then they are enabled by Comission or Instructions under the seale of theire Collonie; much lesse can it stand with the Jurisdiction and Right of Government reserved to ever[y] Collonie for six Comissioners of the other Collonies to put forth any Acte of power in a vindictive warr wherby they shall comaund the Collonie decenting to assist them in the same; neither can it bee the meaning of the severall Collonies whoe are soe tender of theire power in Governing theire owne that they should put theire power out of theire owne hands in the most waighty points (A bondage hardly to bee borne by the most Subjective people), And cannot bee conceived soe free a people as the united Collonies should submite unto;
It can bee noe lesse then a contradiction to affeirme the Supreame power (which wee take to bee the Generall Courts of every Jurisdiction) can bee comaunded by others: an absurditie in pollicye, that an Intire Government and Jurisdiction should prostitute itselfe to the Comaund of Strangers; a Scandall in Religion, that a generall court of Christians should bee oblidged to acte and engage upon the faith of six Delligates against theire Consience;—all which must bee admited in case wee acknowlidg ourselves bound to undertake an offencive warr upon the bare determination of the Comissioners, whoe can not nor ever did challenge Authoritie over us, or expecte Subjection from us....
[Observe that the Massachusetts government did flatly nullify a decree of the federal congress of the United Colonies. However, it tried to justify itself, not by an avowal of its power, but by a constitutional argument. Massachusetts claimed first that the sixth article (which made the vote of six commissioners binding upon the whole confederation) could apply only to such matters as have been plainly referred to the Commissioners by other parts of the Constitution; and second, that the authority claimed by the federal Congress was inconsistent with the fundamental idea of a confederation, even as it had been understood by the other confederates.
John Fiske says that this argument begins "the development of constitutional law, in the American sense,"—as an attempt to interpret a written constitution. The whole debate makes an interesting prelude to the later arguments of the nullifiers and secessionists in the nineteenth century.]