Download The Mayflower Compact and the Origins of American Democracy: A Historical Analysis and more Schemes and Mind Maps Law in PDF only on Docsity!
THE MAYFLOWER COMPACT:
CELEBRATING FOUR HUNDRED YEARS OF INFLUENCE ON
U.S. DEMOCRACY
JULIA L. ERNST*
The Mayflower Compact
In the Name of God, Amen.
We whose names are underwritten, the loyal subjects of our dread Sovereign
Lord King James, by the Grace of God of Great Britain, France, and Ireland
King, Defender of the Faith, etc.
Having undertaken, for the Glory of God and advancement of the Christian
Faith and Honour of our King and Country, a Voyage to plant the First Col-
ony in Northern Parts of Virginia, do by these presents solemnly and mutu-
ally in the presence of God and one of another, Covenant and Combine our-
selves together into a Civil Body Politic, for our better ordering and
preservation and furtherance of the ends aforesaid; and by virtue hereof to
enact, constitute and frame such just and equal Laws, Ordinances, Acts, Con-
stitutions and Offices, 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. In witness whereof we have hereunder sub-
scribed our names at Cape Cod, the 11th^ of November, in the year of the reign
of our Sovereign Lord King James, of England, France, and Ireland the
eighteenth, and of Scotland the fifty-fourth. Anno Domini 1620.^1
*†Associate Dean for Academic and Student Affairs and Associate Professor, University of North Dakota School of Law. This article is dedicated to my mother, Janet Lee (Mohr) Ernst, a proud descendant of Mayflower passenger John Billington and a constant source of inspiration, strength, and love throughout my life. It is also dedicated to my father, the late Judge John Richard Ernst, who proclaimed on countless occasions that the greatest blessing of his life was his wife, my mother. I am very grateful for invaluable assistance from Burtness Scholar Research Assistants Lauren Kauffman and Kari Peterson, as well as UND School of Law Thormodsgard Law Library Head of Faculty Services Anne Mostad Jensen. I also thank Dean Michael McGinniss, Professor Emeritus Patti Alleva, Anne, and my mother for their thoughtful comments on drafts of this article, in addition to the NDLR editors and members for their excellent work on this piece.
- WILLIAM BRADFORD, OF PLYMOUTH PLANTATION 1620-1647 83-84 (Random House ed.
- (modern English spelling).
II. HISTORICAL CONTEXT LEADING UP TO THE MAYFLOWER
- 2 NORTH DAKOTA LAW REVIEW [VOL. 95:
- I. INTRODUCTION
- COMPACT
- AND AROUND EUROPE A. DEMOCRATIC PRECURSORS TO THE MAYFLOWER COMPACT IN
- COMPACT B. CONTEXT IN THE AMERICAS PRECEDING THE MAYFLOWER
- PLYMOUTH COLONY III. THE PILGRIMS, THE MAYFLOWER COMPACT, AND
- A. THE JOURNEY OF THE PILGRIMS
- AND STRANGERS........................................................................ B. THE MAYFLOWER COMPACT’S UNIFICATION OF THE SAINTS
- C. THE MAYFLOWER COMPACT: WHAT IT DID AND DID NOT DO
- D. THE ASCENT AND ABSORPTION OF PLYMOUTH COLONY
- The Early Years
- The Pilgrim Code of Law
- Plymouth Colony’s Remaining Decades
- IV. THE MAYFLOWER COMPACT’S ENDURING LEGACY
- A. ESTABLISHMENT OF OTHER COLONIES
- Massachusetts
- Connecticut
- Rhode Island
- Pennsylvania
- THOUGHT IN EUROPE B. CONTINUED DEVELOPMENT OF DEMOCRATIC POLITICAL
- REVOLUTIONARIES C. THE MAYFLOWER COMPACT’S INFLUENCE ON THE
- Declaration of Independence
- State Constitutions
- Articles of Confederation
- U.S. Constitution
4 NORTH DAKOTA LAW REVIEW [VOL. 95:
on to the New World in 1620. After highlighting the events leading up to the
formation of the Mayflower Compact, which the voyagers adopted to unify
the members of the religious community along with the others travelling with
them, this section then explores the text and meaning of this important agree-
ment. Next, this section investigates the rise of Plymouth Colony and its ul-
timate absorption into the Massachusetts Bay Colony in 1691. Part IV of the
article discusses the Mayflower Compact’s enduring legacy, surveying the
establishment of other colonies, the continued progress of democratic politi-
cal thought in Europe, the Mayflower Compact’s impact on the Revolution-
aries, and its post-Revolution significance. The article concludes in Part V
with a brief note about the Mayflower Compact’s lessons for the present day.
II. HISTORICAL CONTEXT LEADING UP TO THE MAYFLOWER
COMPACT
In forming an agreement that provides for the consent of the governed,
lauds equality and justice, and establishes a government whose purpose is the
general good of everyone in the community no matter their station in life, the
Mayflower Compact’s uniting of the travelers aboard the eponymous ship
may appear to be somewhat of a revolutionary action when it was penned
four centuries ago. However, these ideas were not novel. Indeed, political and
theological concepts had begun to question absolute political and ecclesias-
tical authority, to promote the notion of participatory governance, and to as-
sert that the purpose of government is to advance the good of the people for
quite some time beforehand, as described below.
The concept of a society based upon a “social contract” or “covenant”
among the members of the society emerged at least three to four thousand
years ago.^5 Such a society is based on the deliberate choice to shape one’s
social and political relationships through purposeful agreement about the best
governance structure, usually resulting in one based on democracy, equality,
and civil rights.^6 This concept stands in stark contrast with either a society
based upon enforced hierarchical relationships (such as an absolute monar-
chy or a colonizer’s conquest and political dominance over conquered peo-
ples),^7 or a society based upon an ad hoc evolution of a societal framework
- Daniel J. Elazar, The Political Theory of Covenant Biblical Origins and Modern Develop- ments , 10 PUBLIUS: THE J. OF FEDERALISM 3, 5 (1980). 6_. Id._ at 13 (“Covenantal foundings emphasize the deliberate coming together of humans as equals to establish bodies politic in such a way that all reaffirm their fundamental equality and retain their basic rights.... Polities whose origins are covenantal reflect the exercise of constitutional choice and broad-based participation in constitutional design.”). 7_. Id._ at 12 (Conquest includes “a conqueror gaining control of a land or a people.”). The con- cept of conquest is central to the United States story, such as the settlers in North America taking the land of the original inhabitants, and the U.S. government ultimately claiming significant political
2020] THE MAYFLOWER COMPACT 5
(such as an oligarchy based upon tradition and its corresponding governance
structure based on wealth).^8 These competing ideas about and models of so-
cial structures and their corresponding systems of governance have played
out in various regions of the world for the past several millennia.^9 This seg-
ment of the article briefly explores some of those governance and societal
structures focusing on Europe and the Americas, particularly highlighting the
budding democratic antecedents to the Mayflower Compact leading up to the
formation of this historic document.
A. DEMOCRATIC PRECURSORS TO THE MAYFLOWER COMPACT IN AND AROUND EUROPE^10
Since early recorded history several thousand years ago, 11 people have
created sophisticated societies and governments throughout the globe, some
including the kernels of modern democracy. The Mesopotamian region (now
parts of Iraq, Iran, Syria, and other countries) developed the first written his-
tory approximately 5,000 years ago (c. 3200 BC).^12 The Mesopotamian gov-
ernments of Babylon and Sumer were well-organized with early vestiges of
control over the people who had originally occupied the North American continent. See the Marshall Trilogy, in which Chief Justice John Marshall created the “discovery doctrine,” and the doctrine of “domestic dependent nations” to provide legal justification for these conquests. See ROD GRAGG, THE PILGRIM CHRONICLES: AN EYEWITNESS HISTORY OF THE PILGRIMS AND THE FOUNDING OF PLYMOUTH COLONY 217-18 (2014). See generally Johnson v. M’Intosh, 21 U.S. 543 (1823); Cher- okee Nation v. Georgia, 20 U.S. 1 (1831); Worcester v. Georgia, 31 U.S. 515 (1932); Matthew L.M. Fletcher, The Iron Cold of the Marshall Trilogy , 82 N.D. L. REV. 627 (2006). 8_. See_ Elazar, supra note 5, at 12 (“Organic evolution involves the development of political life from its beginnings in families, tribes, and villages to large polities in such a way that institu- tions, constitutional relationships, and power alignments emerge in response to the interaction be- tween past precedent and changing circumstances with a minimum of deliberate constitutional choice.”); see also id. at 12-13 (“[J]ust as conquest tends to produce hierarchically organized re- gimes ruled in an authoritarian manner, organic evolution tends to produce oligarchic regimes which at their best, have an aristocratic flavor, and at their worst are simply the rule of the many by the few.”).
- The Nature of Government: Types of Government , USHISTORY.ORG, https://www.ushis- tory.org/gov/1b.asp (last visited Feb. 21, 2020).
- Although this article focuses on the development of societies, governments, religious the- ory, and political theory in Europe and North America, this focus is not intended to diminish the parallel developments occurring at the same time in civilizations throughout other regions of the world.
- About 300,000 years ago, Homo sapiens first appeared in Africa. Homo Sapiens , SMITHSONIAN NAT’L MUSEUM OF NAT. HIST., http://humanorigins.si.edu/evidence/human-fos- sils/species/homo-sapiens (last updated Jan. 10, 2020). 12_. See_ History.com Editors, Mesopotamia , HISTORY.COM (Nov. 30, 2017), https://www.his- tory.com/topics/ancient-middle-east/Mesopotamia; Richard N. Frye, Dietz O. Edzard, Wolfram Th. von Soden, History of Mespotamia , BRITANNICA, https://www.britannica.com/place/Mesopota- mia-historical-region-Asia (last visited Jan. 15, 2020).
2020] THE MAYFLOWER COMPACT 7
religious toleration of Christians. Christianity became the official religion of
the Roman Empire in 391 AD.^22
The progression of democracy seemingly halted for a period. Raids by
Germanic tribes ultimately led to the fall of the Western Roman Empire in
476 AD and the establishment of thousands of feudal governments thereafter,
which local lords ruled.^23 The Middle Ages, otherwise known as the medieval
period or Dark Ages, lasted in Europe from the fall of the Roman Empire to
the fourteenth century.^24 During this epoch, the primary ordering of society
entailed the church hierarchy and feudalism, through which local nobility
controlled peasants and serfs, who were bound to the land and forced to cul-
tivate it on behalf of the upper-class landowners.^25 The feudal lords eventu-
ally banded together and pledged their loyalty to kings, such as in France and
England in Western Europe. German kings dominated the rise of the Holy
Roman Empire between 800-1806.^26 Throughout this timeframe the Byzan-
tine Empire controlled Eastern Europe.^27
Despite the widespread adherence to the absolute or divine right of
kings, slivers of democratic thought still emerged in Europe during the Mid-
dle Ages.^28 For example, between the eleventh and fourteenth centuries,
monarchs began granting royal charters to municipal corporations, usually
through a process of negotiation between the crown and municipal leaders.^29
In 1159, John of Salisbury wrote Policraticus , the first political science text
22_. See_ The Editors of Encyclopedia Britannica, Edict of Milan , BRITANNICA (July 20, 1998), https://www.britannica.com/topic/Edict-of-Milan. 23_. See_ Evan Andrews, 8 Reasons Why Rome Fell , HISTORY.COM (Jan. 14, 2014), https://www.history.com/news/8-reasons-why-rome-fell.
- History.com Editors, Middle Ages , HISTORY.COM (Apr. 22, 2010) https://www.his- tory.com/topics/middle-ages/middle-ages. 25_. See_ Elizabeth A.R. Brown, Feudalism , BRITANNICA (July 20, 1998), https://www.britan- nica.com/topic/feudalism.
- Geoffrey Barraclough, Holy Roman Empire , BRITANNICA (July 20, 1998), https://www.britannica.com/place/Holy-Roman-Empire. 27_. See_ John L. Teall, Donald MacGillivray Nicol, Byzantine Empire , BRITANNICA (July 20, 1998), https://www.britannica.com/place/Byzantine-Empire; see also History.com Editors, Byzan- tine Empire , HISTORY.COM (Aug. 24, 2010), https://www.history.com/topics/ancient-middle- east/byzantine-empire. 28_. See The Middle Ages_ , BRITANNICA (July 20, 1998), https://www.britan- nica.com/topic/government/The-Middle-Ages.
- Elazar, supra note 5, at 8 (“the political dimensions of covenanting received new impetus in the eleventh through the fourteenth centuries... [including] the establishment of municipal cor- porations throughout... [Europe] which were legitimized by royal charter, usually negotiated be- tween the municipality and the throne.”); see also John Lothrop Motley, Polity of the Puritans , 69 THE N. AM. REV. 470, 478-79 (1849) (quoting GEORGE BANCROFT, I. HISTORY OF THE UNITED STATES, 310 (1834), who expounded, “‘The middle age had been familiar with charters and consti- tutions; but they had been merely compacts for immunities, partial enfranchisements, patents of nobility, concessions of municipal privileges, or limitations of the sovereign power in favor of feu- dal institutions.’ Bancroft, I. 310.”).
8 NORTH DAKOTA LAW REVIEW [VOL. 95:
of the era, which—although it reaffirmed the divine right of kings—also ad-
vocated for the right of the ruled to depose and even assassinate a tyrannical
monarch.^30 Although this line of thought did not flourish during that era, as
scholars subsequently declared the king to be above the law, the thought was
at least introduced.^31
As another example, in 1215, the Magna Carta (“great charter”) encom-
passed the notion that everyone must comply with the law, even the rulers,^32
and expressed several progressive ideals such as the right to own property
and the right to a fair trial.^33 Although the upper-class nobility had created
the Magna Carta and obliged the king to assent to its provisions, this pact
afforded individuals—including those not in the upper class—certain rights
that had not previously been recognized.^34 The Magna Carta also supported
“the fundamental principle of no taxation without consent.”^35
Starting in the fourteenth century, Europe experienced the Renaissance,
an era of “rebirth” after the Dark Ages, during which Europeans revived clas-
sical culture, art, literature, and science, as well as political, economic, reli-
gious, and philosophical thought.^36 The invention of the printing press by
Johannes Gutenberg in the 1450s extensively facilitated the spread of
knowledge throughout the continent,^37 including Bibles written in the lan-
guages spoken by people throughout Europe, instead of solely in Latin, which
was incomprehensible to most people except the wealthy and few others with
access to an education.^38 Before the Gutenberg printing press enabled mass
30_. See_ Bradley Aron Cooper, Defending Liberty and Defeating Tyrants: The Reemergence of Federal Theology in the Rhetoric of the Bush Doctrine , 85 U. DET. MERCY L. REV. 521, 526- (2008) (“The notoriety of Policraticus is due to its defense of the doctrine of tyrannicide, the idea that it is legitimate to slay a ruler who has become a tyrant.” As opposed to total submission to the monarchy, however just or tyrannical it may be, Policraticus “introduces the concept of collective responsibility that rests upon all of society... Combined with this sense of ‘community justice’ was the idea that a tyrant, by definition, is a king who rules contrary to the law. Accordingly, it is up to the community to enforce the law, even if it is the king who violates it.” Political theorists subsequently “concluded that the king was no longer under the law, but was now to be considered superior to it.”).
- This concept may sound familiar: the people may rebel against a government that is no longer serving the people—see the related provision in the Declaration of Independence. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
- DONALD S. LUTZ, THE ORIGINS OF AMERICAN CONSTITUTIONALISM 59 (1998). 33_. See_ History.com Editors, Magna Carta , HISTORY.COM (Dec. 17, 2009), https://www.his- tory.com/topics/british-history/magna-carta. 34_. Id._
- LUTZ, THE ORIGINS supra note 32, at 59.
- History.com Editors, Renaissance , HISTORY.COM (Apr. 4, 2018), https://www.his- tory.com/topics/renaissance/renaissance. 37_. Id._ ; Evan Andrews, 7 Things You May Not Know About the Gutenberg Bible , HISTORY.COM (Feb. 23, 2015), https://www.history.com/news/7-things-you-may-not-know-about- the-gutenberg-bible.
- ALYSSA ADAMS ET AL., A HISTORY OF THE BOOK: DISRUPTING SOCIETY FROM TABLET TO TABLET, 29-33 (2015).
10 NORTH DAKOTA LAW REVIEW [VOL. 95:
in 1521.^45 Protestantism’s reliance on scripture ( sola scriptura ) instead of
saints or priests undermined many people’s belief in papal supremacy and in
the infallibility of the pope.^46
As Protestantism spread throughout Europe in the 1500s, the Reformed
Protestant notions of covenant between God and the people served as a model
for political relationships among people—and significantly, this covenant
was based upon consent.^47 For example, in Scotland in the 1500s, local clans
banded together through pacts to protect their lives and property, and later to
defend their liberty—particularly with respect to their religious freedom to
practice Protestantism as opposed to the Catholic monarchy.^48 Notably, these
clans chose to band together—they consented to be part of a group—as op-
posed to being forced to do so.^49
Other important thinkers during this time period contributed to the de-
velopment of theological and political thought, particularly the importance of
relationships based on covenant, or mutual promises consisting of both mu-
tual rights and mutual obligations. For example, in 1525, German Protestant
reformer Johannes Oecolampadius discussed the relationship between bibli-
cal covenants and political covenants.^50 John Calvin, who was born in France
and resided primarily in Geneva, published the influential Institutes of the
Christian Religion in 1536 and further developed covenant theology, noting
God’s covenants with Adam, Noah, Moses, and Abraham, and with all of
45_. See_ Sylvia Poggioli, The Pope Commemorates The Reformation That Split Western Chris- tianity , NPR (Oct. 28, 2016, 4:29 AM), https://www.npr.org/sections/paral- lels/2016/10/28/499587801/pope-francis-reaches-out-to-honor-the-man-who-splintered-christian- ity; see also Editors of Encyclopedia Britannica, Diet of Worms , BRITANNICA (July 20, 1998), https://www.britannica.com/event/Diet-of-Worms-Germany-1521. 46_. See generally_ RONALD W. DUTY & MARIE A. FAILINGER, ON SECULAR GOVERNANCE: LUTHERAN PERSPECTIVES ON CONTEMPORARY LEGAL ISSUES (2016). 47_. See_ Elazar, supra note 5, at 14. (“[A covenant] world view was recreated by the Reformed wing of Protestantism as the federal theology from which... the English and American Puritans developed political theories and principles of constitutional design.”); see also id. at 5 (“Out of these covenantal peoples emerged Judaism and Christianity with their biblical covenantal base, reformed Protestantism with its federal theology, federalism as a political principle and arrangement, the modern corporation, civil societies based upon interlocking voluntary associations, and almost every other element that reflects social organization based upon what has loosely been called ‘con- tract’ rather than ‘status.’ Moreover, these covenantal peoples seemed to have internalized a cove- nantal or federalistic approach to life[.]”); see also J. Wayne Baker, Covenant and Community in the Thought of Heinrich Bullinger, in THE COVENANT CONNECTION: FROM FEDERAL THEOLOGY TO MODERN FEDERALISM 15-29, at 20 (Daniel J. Elazar & John Kincaid eds., Lexington Books
- (“[T]he modern political philosophy of federalism is directly linked to the covenantal theol- ogy of the Reformation period.”), as quoted in Cooper, supra note 30, at 546, n. 140.
- Cooper, supra note 30, at 540. 49_. See id._
- Elazar, supra note 5, at 20.
2020] THE MAYFLOWER COMPACT 11
humanity through Jesus.^51 As a part of the Protestant movement, people fol- lowing Calvinist beliefs broke away from the Roman Catholic Church in Eu- rope, and in England disavowed many of the tenets of the Church of England, arguing “that worship should be Bible-based, emphasizing simplicity instead of ceremony and biblical doctrine rather than Church tradition.”^52 Calvinist
ideas and Calvinist churches spread throughout Europe, including England, and then through settlers to the colonies in the New World.^53 Moreover, from Heinrich Bullinger’s experiences living in the Swiss confederation in the six- teenth century, which had originally formed when three independent states entered into a pact for mutual defense in 1291 and evolved into a loose con- federation of states, this notable Swiss theologian in 1533 “developed a con-
cept of the covenant that not only had theological meaning but also important social and political implications.”^54 In England, King Henry VIII converted from Catholicism to Protestant- ism in 1534 when the Catholic pope refused to annul his marriage, creating the Church of England and establishing himself as the head of the church as well as the state.^55 After his death and the death of his son King Edward VI,
his daughter Queen Mary I violently attempted to restore Catholicism (earn- ing her the nickname Bloody Mary), but upon her death five years later, her half-sister Queen Elizabeth I restored the Church of England.^56 During Eliz- abeth I’s reign from 1558-1603, the spread of printed Bibles led to a surge in religiosity, and access to scripture also led to a proliferation of differing reli- gious beliefs, but the queen and Church of England mandated that everyone
must follow the Book of Common Prayer and Church of England or face severe punishment.^57
51_. See_ William J. Bouwsma, John Calvin , BRITANNICA (July 20, 1998), https://www.britan- nica.com/biography/John-Calvin.
- GRAGG, supra note 7, at 14-15.
- Martinez, supra note 41, at 464 (noting the “expansion of Calvinism in the 16th^ century from... Switzerland, France, Holland, England and Scotland; and the expansion of Calvinism in the 17th^ century to the English colonies of America.”); see also id. at 465 ( discussing John Calvin and Martin Luther).
- Cooper, supra note 30, at 531 (explaining in 1533, Bullinger published a treatise in which “he established that God’s eternal covenant with man... was to be the divine model for all human affairs, be they religious or civil in nature. Bullinger’s work soon gained momentum, spreading quickly to other reformed communities of northwestern Europe, and then later to European colonies around the world.” “[I]t was this idea of covenant—as the guiding principle in both spiritual and political affairs—that was later responsible for reclaiming the anti-tyrannical stance that John of Salisbury had espoused four centuries earlier.”).
- GRAGG, supra note 7, at 9. 56_. Id._ at 9-11. 57_. Id._ at 10-14, 25-29.
2020] THE MAYFLOWER COMPACT 13
along with political units such as cities and provinces, began to assert their
rights to autonomy and to associate freely, abandoning the strictly hierar-
chical frameworks that had been imposed upon them through medieval feu-
dalism.^64 Beginning in the 1500s, English Puritans and Scots designed na-
tional covenants to order civil society, which were mirrored by the covenants
settlers from Great Britain wrote to establish the colonial governments.^65
B. CONTEXT IN THE AMERICAS PRECEDING THE MAYFLOWER COMPACT
Indigenous people arrived in North America from Asia before 15,
BC, and possibly up to 40,000 years ago.^66 Various indigenous civilizations
flourished in the Americas, creating sophisticated social and political struc-
tures.^67 When Europeans initially made contact, about 50 million people
lived in the Americas, including about 10 million people in the land that
would eventually become the United States.^68
theology, federalism as a political principle and arrangement, the modern corporation, civil societies based upon interlocking voluntary associations, and almost every other element that reflects social organization based upon what has loosely been called ‘contract’ rather than ‘status.’ Moreover, these covenantal peoples seemed to have internalized a covenantal or federalistic approach to life[.]”).
- Elazar, supra note 5, at 9 (“The reformed churches turned to the covenant concept with relish, finding in it the most appropriate expression of their theological ideas and expectations for church polity. The federal theology which they created (federal is derived from the Latin foedus, which means covenant) stimulated the renewed political application of the covenant idea which was given expression first by political theologians and then by [secular] political philosophers... [in- cluding] Hobbes, Locke, and Spinoza.”); id. at 19 (“Individuals revolted in the name of conscience and the freedom to associate or covenant on their own terms. Provinces, cities, and even villages asserted rights to autonomy, rejecting the hierarchical relationships of feudalism and medieval po- litical society.”).
- Elazar, supra note 5, at 4 (“during the sixteenth and seventeenth centuries, the Scots and the English Puritans not only conceived of civil society in covenantal terms, but actually wrote national covenants to which loyal members of the body politic subscribed. Similar covenants were used in the founding of many of the original colonies in British North America.”).
- Simon Worrall, When How Did the First Americans Arrive? It’s Complicated , NAT’L GEOGRAPHIC (June 9, 2018), https://www.nationalgeographic.com/news/2018/06/when-and-how- did-the-first-americans-arrive—its-complicated-/#close (explaining humans could have been here 40,000 years prior.). 67_. See_ William T. Sanders et al., Pre-Columbian Civilizations , BRITANNICA (July 26, 1999), https://www.britannica.com/topic/pre-Columbian-civilizations/.
- History.com, Native American Cultures , HISTORY.COM (Dec. 4, 2009), https://www.his- tory.com/topics/native-american-history/native-american-cultures; see also Alexander Koch, Chris Brierley, Mark M. Maslin, and Simon L. Lewis, Earth System Impacts of the European Arrival and Great Dying in the Americas after 1492 , 207 QUARTERNARY SCI. REVIEWS 13, 16 (2019) (indi- cating that the exact numbers are not known, and estimates vary widely. For example, the number of inhabitants in North America in 1492 ranges between 900,000 and 18 million.).
14 NORTH DAKOTA LAW REVIEW [VOL. 95:
The region where the Pilgrims settled had been inhabited for at least
10,000 to 12,000 years before their arrival.^69 These first Americans had de-
veloped thriving communities, using hunting, fishing, and farming method-
ologies similar to that of the Europeans at the time.^70 As opposed to absolute
authority of monarchs in Europe ruling by divine right (no matter their level
of competence), the many American communities were governed by a chief,
along with a council of advisors, who could be replaced if not capably serving
the tribe.^71 This is an early example on the North American continent of the
principles of the consent of the governed and that government should serve
the good of the people, even before the Mayflower Compact.
Native American societies were advanced in other ways, as well. In com-
parison with European medical practices,^72 the first Americans’ medical sci-
ence included some methods that were much more quick and effective than
that of the Europeans.^73 One historian writes, “Despite the seeming simplicity
of its technology, North American civilization was far larger and more orga-
nized than the Europeans ever knew,”^74 including trade that reached from the
coasts to the Dakotas.^75 Notably, this historian has highlighted:
[T]he quality of life in [European] cities wasn’t necessarily better than it was in [the Native American villages]. European cities were stinking places with garbage and sewage in the streets, where dis-
ease was widespread and often endemic, rats were rampant, public water was dangerous to drink, foods were often rotten, almost eve- ryone drank an unhealthy amount of alcohol, and wars were fought with a technology-sharpened savagery beyond the imagination of
the “savages” of North America.
[By contrast, the] first European explorers who met Indians in New England found them to be beautiful, healthy, and, until they learned European ways, friendly and generous.
While Europeans were consuming as much as they could and now needed a whole new continent to consume—its plants, minerals, and animals—the natives of North America had devised a sustainable
- CHENEY, supra note 41, at 219. 70_. Id._ at 219-20. 71_. Id._ at 227-28. 72_. Id._ at 44 (including “the letting of blood, the drilling of skulls, the application of mercury and lead, and doses of anything from horse, hare and hen dung to crab juice beyond its prime.”). 73_. Id._ at 222-23. 74_. Id._ at 223. 75_. Id._ at 224.
16 NORTH DAKOTA LAW REVIEW [VOL. 95:
Bartholomew Columbus, brother of Christopher, established Santo Do-
mingo, which became the first permanent European settlement in the Amer-
icas.^85 As many as 3 million people who originally inhabited the Caribbean
islands were wiped out through their armed struggles against the European
aggressors, starvation due to enslavement and maltreatment by the Europe-
ans, and disease brought by the Europeans.^86 Through their trans-continental
voyages, the Columbus brothers brought word of the New World back to
Europe, sparking additional expeditions.
Through their voyages to the New World throughout the initial decades,
Europeans began by exploring the continent and interacting with the people
who originally inhabited the land, trading with them and bringing some of
the continent’s resources back to Europe.^87 For example, in 1513, Spanish
voyager Juan Ponce de Leon is the first known European explorer to reach
the Florida peninsula.^88 Explorers such as John Cabot, Giovanni de Verra-
zano, Jacques Cartier, Samuel Champlain, Bartholomew Gosnold, Martin
Pring, and John Smith sailed up and down the Atlantic coast.^89 While some
of these European missions were peaceful, many were not.^90 Captain George
Weymouth and Captain Thomas Hunt kidnapped Native Americans, selling
some of them into slavery in Europe.^91
The Aztec civilization that reigned in the region that is now Mexico was
ravaged by smallpox brought by the explorers.^92 It was then brutally con-
quered in 1521 by the Spanish conquistadores and native allies led by Hernán
Cortés.^93 The well-developed Inca Empire suffered a similar fate at the hands
Editors of Encyclopedia Britannica, Bartholomew Columbus , BRITANNICA (July 20, 1998), https://www.britannica.com/biography/Bartholomew-Columbus.
Robert M Poole, What Became of the Taíno? , SMITHSONIAN MAG. (Oct. 2011), https://www.smithsonianmag.com/travel/what-became-of-the-taino-73824867/.
COTTON MATHER, MAGNALIA CHRISTI AMERICANA OR THE ECCLESIASTICAL HISTORY OF NEW ENGLAND 23-24 (Raymond J. Cunningham ed. (1970) (1702).
Matt Blitz, The Oldest City in the United States, SMITHSONIAN MAG. (Sept. 3, 2015), https://www.smithsonianmag.com/travel/us-oldest-city-st-augustine-florida-180956434/.
GRAGG, supra note 7, at 214-15. 90_. Native American History_ , BRITANNICA (July 26, 1999), https://www.britan- nica.com/topic/Native-American/Native-American-history; see also Native Americans and Coloni- zation: the 16th and 17th Centuries , BRITANNICA (July 26, 1999), https://www.britan- nica.com/topic/Native-American/Native-Americans-and-colonization-the-16th-and-17th-centuries (“From a Native American perspective, the initial intentions of Europeans were not always imme- diately clear. Some Indian communities were approached with respect and in turn greeted the odd- looking visitors as guests. For many indigenous nations, however, the first impressions of Europe- ans were characterized by violent acts including raiding, murder, rape, and kidnapping.”).
GRAGG, supra note 7, at 215.
Richard Gunderman, How Smallpox Devastated the Aztecs – and Helped Spain Conque an American Civilization 500 Years Ago , PBS (Feb. 23, 2019), https://www.pbs.org/newshour/sci- ence/how-smallpox-devastated-the-aztecs-and-helped-spain-conquer-an-american-civilization- 500-years-ago. 93_. Id._
2020] THE MAYFLOWER COMPACT 17
of Spanish explorer Francisco Pizarro and his band of conquistadores in 1532
in the land that is now Peru.^94 One account described “the atrocities the Span-
iards’ hateful hunt for gold had inflicted on the Indians of America.”^95
As Reformed Protestantism and its corresponding political concepts
spread throughout Europe in the 1500s, people from Spain, France, and Eng-
land began attempting to break away from those monarchies and colonize
various parts of North America, but many of these initial efforts failed.^96 For
example, colonists from Spain unsuccessfully endeavored to settle in the re-
gions that would later become Georgia in 1526, Florida in 1528-1536 and
1559-1561, North Carolina in 1567-1568,^97 and Virginia in 1570-1571.^98 The
French tried to settle in South Carolina in 1562-1563, Florida in 1564-1565,^99
and Maine in 1604-1605.^100 In 1585 and 1587-1590, English colonists un-
successfully struggled to establish a settlement in North Carolina, now
known as the “Lost Colony of Roanoke.”^101 English settlers also attempted a
failed colony in Maine in 1607-1608.^102
Many of the initial colonies failed in part due to starvation, disease, ex-
posure to the elements, lack of sufficient resupplies from Europe, conflicts
with the people who already inhabited the land, and slaughter by rival Euro-
peans—reflecting the incessant violent conflicts between European nations
across the Atlantic.^103
Liesl Clark, The Lost Inca Empire , PBS (Oct. 31, 2000), https://www.pbs.org/wgbh/nova/article/lost-inca-empire/.
PHILBRICK, supra note 42, at 6.
Nat’l Human. Ctr., Reading Guide – Failed Colonies , http://nationalhumanities- center.org/pds/amerbegin/exploration/text6/text6read.htm (last visited Feb. 21, 2020). 97_. The National Park Service and American Latino Heritage: The Spanish Claim to Florida, Georgia, and the Carolinas, 1513-1821_ , NPS, https://www.nps.gov/nr/travel/american_latino_her- itage/Spanish_Claim_to_Florida_Georgia_and_the_Carolinas.html (last visited Feb. 1, 2020).
Anthony Aveni, Why Virginia Was Not Spanish , HISTORY.ORG, https://www.his- tory.org/foundation/journal/spring13/spanish.cfm (last visited Feb. 1, 2020).
Kenneth C. Davis, America’s First True “Pilgrims” , SMITHSONIAN MAG. (May 22, 2008), https://www.smithsonianmag.com/history/americas-first-true-pilgrims-50229713/ (discuss- ing Spanish slaughter of French soldiers). 100_. Saint Croix Island_ , NAT. PARK SERV., https://www.nps.gov/sacr/learn/historycul- ture/saint-croix-island-timeline.htm (last visited Feb. 1, 2020); Champlain and the Settlement of Acadia 1604-1607 , THE U. OF ME., https://umaine.edu/canam/publications/st-croix/champlain-and- the-settlement-of-acadia-1604-1607/ (last visited Feb. 1, 2020).
CHENEY, supra note 41, at 26; Roanoke Colony Deserted , HISTORY.COM, https://www.history.com/this-day-in-history/roanoke-colony-deserted (last visited Feb. 1, 2020).
Evan Andrews, The Lost Colony of Popham , HISTORY.COM (May 12, 2017), https://www.history.com/news/the-lost-colony-of-popham.
Kenneth C. Davis, America’s First True “Pilgrims” , SMITHSONIAN MAG. (May 22, 2008), https://www.smithsonianmag.com/history/americas-first-true-pilgrims-50229713/; see e.g. , MATHER, supra note 87, at 23-24.
2020] THE MAYFLOWER COMPACT 19
“starving time,”^114 when some of the colonists even resorted to cannibalism
to survive the food shortage due to an extended drought and conflict with the
Powhatan Indian tribe.^115 Re-supply ships arriving from England intercepted
the fleeing colonists, who were persuaded to return to the Jamestown settle-
ment. Under the Virginia Company Charters of 1606, 1609, and 1612, the
colony was initially under control of the monarch, then under the control of
the Virginia Company under a virtually absolute governor along with a coun-
cil.^116
Considering the advancements in democratic political and theological
concepts that were sweeping through Europe throughout the 1500s and into
the 1600s, unsurprisingly, the colonists in Jamestown, Virginia, eventually
adopted some of those notions in developing the governance structure in their
new colony. After the new supplies brought in 1610 helped stabilize the col-
ony, the settlers adopted the “Articles, Laws, and Orders, Divine, Politic, and
Martial for the Colony in Virginia—1610-1611”^117 as a type of constitutional
agreement. Then in 1619, the Jamestown colonists wrote and adopted the
“Laws Enacted by the First General Assembly of Virginia—Aug. 2-4,
1619,”^118 and “a representative House of Burgesses was created, elected by
all male landowners [in the colony.]”^119 The governor of the Virginia Com-
pany could veto its laws, yet these proclamations established a more egalitar-
ian, independent, and participatory form of governance—establishing rights
and duties of members of the community and proffering its fundamental val-
ues.^120
Yet in a stark turn away from equality, liberty, and human rights, the
Jamestown settlers introduced slavery of people brought from Africa in
PHILBRICK, supra note 42, at 5.
GRAGG, supra note 7, at 100; Jamestown Rediscovery: History , HISTORIC JAMESTOWNE, https://historicjamestowne.org/history/history-of-jamestown/the-starving-time/ (last visited Feb. 1, 2020).
Martinez, supra note 41, at 472.
Donald S. Lutz, From Covenant to Constitution in American Political Thought , 10 PUBLIUS: THE J. OF FEDERALISM 115, 129 (1980) [hereinafter Lutz, From Covenant ]. 118_. Id._ at 129.
Martinez, supra note 41, at 472.
Lutz, From Covenant , supra note 117, at 129.
20 NORTH DAKOTA LAW REVIEW [VOL. 95:
1619,^121 as memorialized in the events calling attention to the 400th^ anniver-
sary of the introduction of slavery into the United States throughout 2019.^122
Although the Jamestown events between 1607 and 1620 preceded the May-
flower Compact, Jamestown has largely been overshadowed by the historical
significance within the United States that has transpired around the Pilgrim
story.^123
As mentioned above, the early European explorers and settlers contrib-
uted numerous factors to the decimation of the indigenous population
throughout the Americas in the 1500s, including disease, warfare, loss of
homelands, enslavement, and societal disruption.^124 Tragically, by 1650, the
entire indigenous population throughout the Americas was reduced to less
than 6 million, in what is described as “possibly the greatest demographic
disaster in the history of the world.”^125 Therefore, when the Pilgrims and the
growing waves of European settlers began arriving in the 1600s, only a frac-
tion of the original inhabitants remained.^126
121_. First Enslaved Africans Arrive in Jamestown, Setting the Stage for Slavery in North America_ , HISTORY.COM, https://www.history.com/this-day-in-history/first-african-slave-ship-ar- rives-jamestown-colony (last visited Feb. 1, 2020); Olivia B. Waxman, The First Africans in Vir- ginia Landed in 1619. It Was a Turning Point for Slavery in American History—But Not the Begin- ning , TIME (Aug. 20, 2019), https://time.com/5653369/august-1619-jamestown-history/ (explaining Jamestown colony may not have been the first instance of slavery. “Juan Garrido became the first documented black person to arrive in what would become the U.S. when he accompanied Juan Ponce de León in search of the Fountain of Youth in 1513.”).
- Gregory S. Schneider, Virginia Marks the Dawn of American Slavery in 1619 with Sol- emn Speeches and Songs , WASHINGTON POST (Aug. 24, 2019, 2:05 PM), https://www.washing- tonpost.com/local/virginia-politics/virginia-marks-the-dawn-of-american-slavery-in-1619-with- solemn-ceremonies-speeches-songs/2019/08/24/adbc84ae-c66f-11e9-9986- 1fb3e4397be4_story.html. 123_. See, e.g._ , LUTZ, THE ORIGINS, supra note 32, at 168 (“it is... reasonable to see the era of constitution writing from 1776 to 17878 as resting firmly upon developments in American that began in 1620,” referring throughout the book to the date of the Mayflower Compact).
- Ker Than, Massive Population Drop Found for Native Americans, DNA Shows , NAT’L. GEOGRAPHIC (Dec. 5, 2011), https://news.nationalgeographic.com/news/2011/12/111205-native- americans-europeans-population-dna-genetics-science/; see also MATHER, supra note 87, at 34 (de- scribing the decimation of the Native American population in New England due to smallpox); GRAGG, supra note 7, at 216-17; Native American History , BRITANNICA (July 26, 1999), https://www.britannica.com/topic/Native-American/Native-American-history. 125_. The Native Population of the Americas in 1492_ , U. OF WIS. PRESS, https://uwpress.wisc.edu/books/0289.htm (last updated Apr. 24, 2012) (description of the book).
- For a disturbing justification, see MATHER, supra note 87, at 21 (“[T]he good hand of God now brought them to a country wonderfully prepared for their entertainment, by a sweeping mortality that had lately been among the natives.”).
