The framers of our Constitution met during the summer of 1787. (Commentators unfamiliar with the Founding sometimes describe it as a “hot summer”—and it certainly had some hot days—but in fact it was cooler than average for Philadelphia.) The framers did not, as some believe, write on a blank slate. On the contrary, they were the heirs to hundreds of years of Anglo-American constitutional-style documents.
In earlier posts, I identified as examples the Massachusetts Pilgrim Code of Laws of 1676 and the New York Charter of Liberties and Privileges of 1683. Two examples from the northeastern colonies include the Fundamental Orders of Connecticut (1639) and the Fundamentals of West New Jersey (1681).
Pennsylvania was another source of constitutional documents. The best known of these is the first state constitution (1776), an experiment in unicameralism that most Founders thought represented a negative rather than a positive lesson. Far antedating that instrument, however, was The Charter of Liberties and Frame of Government granted by William Penn to his colony on May 5, 1682. Penn had received plenary authority over his colony from the Crown, so this document took the form of concessions from him to his colonists. It was, however, a true colonial constitution.
Here are some of the features of the Pennsylvania Charter of Liberties and Frame of Government:
- It provided for a legislature consisting of a 72-person elected council and a general assembly. Initially, the general assembly consisted of all freemen of the province, but eventually its members were elected annually.
- Councilmen served three year terms; as with the U.S. Senate one-third were elected at any one time.
- The governor presided over the council, in which he had three votes.
- The Council proposed bills to the general assembly, which had to approve them before they could become law.
- The government was to provide for schools and for patents for inventors.
- The document guaranteed jury trial, protection against excessive fines, speedy trial, and freedom of religion for all who acknowledged existence of God or of gods. Only Christians could hold office, but this was an exceptionally tolerant provision at a time: Throughout most of the British Empire Catholics and Protestants who dissented from the state religion generally were barred from office.
Do not think, however, that William Penn’s Pennsylvania (or any other American jurisdiction up to and through the time of the founding) was a libertarian paradise. The Charter of Liberties and Frame of Government provided as follows:
“therefore, that all such offences against God, as swearing, cursing, lying, prophane talking, drunkenness, drinking of healths, obscene words, incest, sodomy, rapes, whoredom, fornication, and other uncleanness (not to be repeated) all treasons, misprisions, murders, duels, felony, seditions, maims, forcible entries, and other violences, to the persons and estates of the inhabitants within this province; all prizes, stage-plays, cards, dice, May-games, gamesters, masques, revels, bull-battings, cock-fightings, bear-battings, and the like, which excite the people to rudeness, cruelty, looseness, and irreligion, shall be respectively discouraged, and severely punished . . . “
Although our country’s Founders and the intellectual forebears believed in ordered liberty, they were not libertarians. I have learned that this fact is exceedingly difficult for some libertarians to accept. Indeed, like people of other persuasions, some libertarians struggle mightily to invent reasons why the Constitution always embodies their own views.