Guest Essayist: Joerg Knipprath

During the Middle Ages, a distinct separation of church and state existed, at least in theory. The pope in Rome and his bishops and priests throughout Western Christendom took care to protect the souls of the people. The emperors, kings, and other secular nobles protected the physical safety of their subjects. The subjects would “repay to Caesar what belongs to Caesar and to God what belongs to God.”

In fact, matters were more ambiguous, because popes frequently called on secular rulers for protection, and the latter looked to the former to confirm the legitimacy of their rule in the eyes of God and their subjects. Moreover, the ecclesiastical rulers, including the pope, also exercised sovereign political control in various territories and sat in the political councils of others. The emperors and other nobles, in turn, frequently sought to control the appointment of ecclesiastical officials within their domains and, in the case of the king of France, to control the selection of the pope himself.

With the split in Western Christendom caused by the Reformation, and the emerging concentration of power in single political rulers in national kingdoms and lesser principalities, two significant changes occurred from the medieval order. Those changes are important for understanding what led to the Mayflower Compact.

First, in the struggle over who had supreme authority in the physical world, emperors or popes, kings or bishops, the balance shifted decisively in favor of the secular rulers. A secular ruler might become the head of a religious establishment, as happened in England beginning with Henry VIII. Less drastically, the ruler might ally with the bishops to control the authority of the pope in matters temporal or secular, as happened to the Church in France. Or, under the doctrine of cuius regio, eius religio (“whose realm, their religion”), the religion practiced by the prince became that of his subjects. The last was the situation in most German states after the Peace of Augsburg in 1555 ended the initial wave of religious wars between Lutherans and Catholics.

The second change was the renunciation among a number of Protestant dissenters of the episcopal structure of the Catholic, Anglican, and Lutheran churches. Whatever might have been the dissatisfaction of Anglican and Lutheran theologians with Catholic doctrine, practices, and administration, the dissenters viewed those established Protestants as merely paler imitations of the Church of Rome. Building on the teachings of the lawyer John Calvin in Geneva, they emphasized salvation through faith alone and living in a community of the faithful governed by themselves or by some elected elders.

In Scotland, these dissenters formed the Presbyterian Church. In England, the Calvinist dissenters became the “Puritans.” They sought to purify the Church of England from various Catholic practices and doctrines while continuing to associate their congregations with the official church. Their goals seemed within reach after the English Civil Wars in the 1640s. They were well represented in the Rump Parliament and among the military leaders, such as Oliver Cromwell and John Lambert. The Anglican majority proved too immovable, however, and, after the Restoration, many Puritan leaders left England. Another group, however, believed that the Anglican Church was hopelessly corrupt, and that the only available path to personal salvation was through separation. This group has become known as the “Pilgrim Fathers,” although they referred to themselves by other names, such as “Saints.”

Both groups of English dissenters established settlements in New England not far apart. Their theological differences, however, kept them separated for decades. Not until 1690 was the Pilgrims’ Plymouth colony absorbed by the much larger Massachusetts Bay Colony.

The two groups shared certain characteristics, which contributed to the development of American constitutional theory. It is part of American mythology that Europeans came to English North America in search of religious freedom, which they joyfully and readily extended to all who joined them. The matter is much more nuanced. While such toleration might well describe the Quaker colony of Pennsylvania and the Catholic colony of Maryland, both of which were formed later, the Pilgrims and Puritans had a different goal. Theirs was to establish their respective visions of a Christian commonwealth, the City of God in the New World. Having left England for a wilderness because of despair over the allegedly corrupt nature of the Anglican Church, never mind the Catholic one, neither group was inclined now to welcome adherents of such beliefs to live among them. Religious freedom, indeed, but for individuals of like beliefs in a community gathered together for mutual assistance in living life according to those beliefs. Conformity in community, not diversity of doctrine, was the goal. God’s revealed law controlled, and governance was put in the hands of those who could be trusted to govern in accordance with that law.

The two groups also shared another characteristic, alluded to above: voluntary community. The individual alone could find salvation through studying and following the Bible. As an inherently social creature, he could, of course, join with others in a community of believers. The basis of that community would be consent, individual will, not an ecclesiastical order based on apostolic succession. Some years after arriving in the New World, the Massachusetts Bay Puritans in the Cambridge Platform of 1648 declared that “a company of professed believers ecclesiastically confederate” is a church, with or without officers. This was the origin of the Congregational Church, founded on a clear separation from all forms of hierarchical church government.

The congregation would govern itself according to the dictates of its members’ consciences and the word of God, while in the secular realm it would be governed under man’s law. What would happen, if man’s law, and the teachings of the established church, conflicted with the word of God, as the believers understood it? What if, to resolve such conflicts, that religious community left the existing secular realm? A political commonwealth of some sort is inevitable, as most political theorists claim. That is where the experience of the Puritans and the Pilgrim separatists differed.

The Puritans formed their Massachusetts Bay Colony on the same basis as the Virginia Company had been formed to settle at Jamestown two decades earlier. It was a joint stock company, somewhat analogous to a modern business corporation, formed by investors in England. The company’s charter provided a plan of government, which included meetings of a General Court composed of the freemen of the Company. The charter failed to specify where these meetings were to occur. English custom was that such shareholder meetings took place where the charter was kept. Some historians have written that the charter was surreptitiously taken from the company’s offices and spirited to the New World, thereby making Boston the site of the General Court. That is a suitably romantic story of intrigue and adventure, indeed. More prosaic is that the change in locale occurred through the Cambridge Agreement of 1629 between the Company’s majority, composed of its members seeking to establish a religious community in Massachusetts, and the minority which was interested in the possibilities of commerce and profit. The majority was permitted to take the charter and thereby secure a de facto independence from English authorities for a half-century. The minority received certain trade monopolies with the colony.

The formation of the Massachusetts Bay Colony, like the Virginia Colony’s, was based on voluntary association and contract. Once the mercantile interest of the English investors was severed, the charter provided a political constitution for the colony’s governance. But the political consequence was the by-product of a commercial enterprise. The best example of an organic constitution created by consent of a community’s members for the express purpose of self-government was the Mayflower Compact concluded almost ten years earlier.

After vigorous attempts at suppression of them by King James I for their separatist beliefs, many Pilgrims fled to the religiously more tolerant United Provinces of the Netherlands. Eventually, however, English pressure on the Dutch induced the Pilgrims to leave their temporary domicile in Leyden. Having procured a ship and picked up additional travelers in England and a license from the Virginia Company to settle on its land, a group of Pilgrims embarked on their journey westward to their future Zion.

Upon reaching the New World in late November, 1620, at what today is Provincetown, Massachusetts, they discovered to their dismay that they had arrived a few hundred miles north of the Virginia Company’s boundary. Many of the 101 passengers aboard their small ship, the Mayflower, were ill, supplies were dwindling, and bad weather loomed. The group eventually decided to land on the inhospitable coast, rather than continue to sail to their allotted land. Before they did so, however, 41 men signed the Mayflower Compact on November 21, 1620, under the new calendar. It must be noted that fewer than half of the men were Pilgrims. Many were “adventurers,” a term of art which referred to individuals sent over by the Company of Merchant Adventurers to assist the colony, tradesmen and men such as the military leader, Myles Standish. The Company had lent money to the settlers. Repayment of those loans depended on the colony’s success.

Not having the luxury of a drawn-out convention meeting under agreeable conditions, the settlers made the Mayflower Compact brief and to the point, but also rudimentary. In significant part, it declared, “Having undertaken for the glory of God, and advancement of the christian [sic] faith, and the honour of our King and country, voyage to plant the first colony in the northern parts of Virginia; [we] …combine ourselves…into a civil body politick, for furtherance of the ends aforesaid ….” Framing “just and equal laws, ordinances, acts, constitutions, and officers, … as shall be thought most meet and convenient for the general good of the colony …,” was left to another day.

The Mayflower Compact is a political application of the voluntary consent basis of religious congregation which the Pilgrims accepted. There was renewed interest in social contract theory as the ethical basis of the state, as an alternative to the medieval theory of a hierarchical political order created by God. Both approaches, it must be noted, were also used by defenders of royal absolutism in the 17th century. Bishop Robert Filmer in his Patriarcha adapted Aristotle’s connection between the family and the state as social institutions and Cicero’s correlation of monarchy and the Roman paterfamilias, to present the monarch as having whatever power he deems needed to promote the public welfare. To give his contention a more appealing, religious basis, Filmer wrote that God gave Adam absolute control over the family in Genesis, thereafter to the three sons of Noah, and finally, as the nations grew, to monarchs.

Thomas Hobbes used contract theory in his work Leviathan to justify royal absolutism. Humans seeks to escape the abysmal state of nature, where life is “solitary, poor, nasty, brutish, and short,” because a state of war exists of all against all. To gain physical and psychological peace, the desperate people enter into a covenant with a powerful ruler. In return for the ruler’s protection and a life of security, they agree to surrender whatever rights they may have had in the state of nature as the ruler deems it necessary. One exception is the right to life.

One might view the Mayflower Compact as an iteration of the Hobbesian covenant. Indeed, the early governance of the colony at times seemed like a military regime, an understandable state of affairs considering the existential danger in which the residents found themselves over the first few years. Alternatively, one might consider the arrangement as simply a settlement within the existing English state, like any town in England. After all, the Pilgrims expressly avowed themselves to be “the loyal subjects of our dread sovereign Lord, King James,” declared that their voyage, in part, was for the “honour of our King and country,” and noted that they were signing during “the reign of our sovereign Lord, King James.”

One might, however, view the Mayflower Compact as a glimpse into the future, to the work of the social contract theorist John Locke a half-century later. The Pilgrims had removed themselves from an existing commonwealth whose laws they found oppressive. Their persecution over their religious faith was a profound breach of the Lockean social contract under which government was created as a useful tool better to protect a person’s personal security and estate. One remedy for such a breach was to leave political society. For Hobbes, this would have been impossible, because it would have placed the individual back in the intolerable state of nature. For Locke, however, the state of nature of human society was not as forbidding. Locke had more of that Whig confidence in man’s goodness. Government was just a way to deal with various inefficiencies of the state of nature in promoting human flourishing, rather than a Hobbesian precondition to such flourishing.

Solitary contemplation and Bible study allowed one to recognize the glory of God and to deepen one’s Christian faith, a journey made more joyful by joining a religious congregation of believers. In similar manner, joining together in a “civil body politick” as set forth in the Mayflower Compact aided in achieving those objectives. Dealing efficiently with quotidian matters of the physical world permitted more contemplation of the spiritual. Happily also, despite all the challenges the New World presented, it had sufficient bounty to give sustenance to the saints in the new Zion, to “lead the New Testament life, yet make a living,” as the historian Samuel Eliot Morison summarized it.

The singular importance of the Mayflower Compact was in the foundation it provided for a theory of organic generation of a government legitimized by the consent of the governed. Self-government became realized through a contract among and for those to be governed. Later American constitutional theories about the people as the source of legitimacy for government had to deal with the practical difficulty of having many thousands of people in each of the already existing political arrangements called “states.” American writers sought to get around that difficulty by having state conventions rather than ordinary legislatures approve the Constitution, a logically rather precarious substitution. Still, the Mayflower Compact set a readily understood paradigm.

A more troubling lesson drawn from the New England colonies, is to recognize the unsettling connection between seeking religious freedom for oneself and prohibiting the same for others. It requires confronting the tension between community and individuality, law and liberty. The right to associate must include the right not to associate. The right to worship in association with other believers must include the right to reject non-believers. To what extent might the rights of the majority to create their “civil body politick” as an embodiment of their City of God on Earth override the rights of others in that community to seek a different religious objective, or no religious objective at all? Massachusetts Bay provided one answer. New settlers were limited to those who belonged to their approved strain of Puritanism. Dissenters were expelled. Those who failed to get the message of conformity were subject to punishment, such as four Quakers who were publicly executed in 1659 after they repeatedly entered the colony and challenged the ruling authorities. The Pilgrims at Plymouth were more accommodating to others, if grudgingly so, because their original settlers had included a substantial number unaffiliated with their iteration of Christianity.

The framers of American constitutions had to face those issues, and tried to balance these interests through concepts such as free exercise of religion, establishment of religion, and secular government. The problem is that such terms are shapeshifters which allow users to project diverse meanings onto them. These difficulties have not disappeared.

Both the organic creative aspect of the Mayflower Compact and its theocratic imperative were found in other constitutional arrangements in New England. The “Fundamental Orders” of the Connecticut River towns in 1639, a basic written constitution, set as their purpose to “enter into…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 among us ….” As in Massachusetts Bay, justice was to be administered according to the laws established by the new government, “and for want thereof according to the rule of the word of God.” The Governor must “be always a member of some approved congregation.”

The colonies of Providence and Portsmouth in today’s Rhode Island, established in the 1630s, had similar founding charters as the Mayflower Compact, because they, too, were formed in the wilderness. A distinctive aspect of those colonies was that they were founded by Puritan dissenters, Roger Williams and Anne Hutchinson, respectively, who had been expelled from Massachusetts Bay. Shaped by their founders’ experiences, these colonies allowed freedom of conscience and did not establish an official religion in the manner of other New England settlements.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

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