Social Compact
The history of the "social compact" was deeply rooted in New England. When the Pilgrims landed outside the chartered territory granted to the Virginia Company of Plymouth, they were without legal political authority. Before landing on November 11, 1620, the men on board the "Mayflower" employed the concept of the covenant or compact to provide for the basis of their civil government:
"In the name of God, Amen. We whose names are under-written, the loyall subjects of our dread soveraigne Lord, King James, by the grace of God, of Great Britaine, France, and Ireland king, defender of the faith, etc., having undertaken, for the glorie of God, and advancemente of the Christian faith, and honour of our king and countrie, a voyage to plant the first colonie in the Northern parts of Virginia, doe by these presents solomnly and mutualy in the presence of God, and one of another, covenant and combine our selves togeather into a civill body politick, for our better ordering and preservation and furtherance of the ends aforesaid; and by vertue hereof to enacte, constitute, and frame such just and equall lawes, ordinances, acts, constitutions, and offices, from time to time, as shall be thought most meete and convenient for the generall good of the Colonie, unto which we promise all due submission and obedience. In witness whereof we have hereunder subscribed our names....."
Once established, the colonists made a signed, written agreement to form a joint-stock corporation among themselves, corporately holding the combined assests, profits and debts of the colony. Chartered in 1621, the Council of New England in 1629 granted a patent to the Plymouth Colony, defining its geographical boundaries and confirming the Kennebec area. The king confirmed the Council's grant and agreed to make the colony a corporation for the purpose of executing and making laws. No royal charter was ever granted the colony.
The "Mayflower Compact" was the first of several covenants or compacts by which civil authority was established within the various New England settlements, including: Rhode Island; Connecticut (see the "Fundamental Orders of Connecticut'); and New Haven. Originally, none of these colonies had any chartered jurisdiction or formal recognition of their right to exist. Most subsequently sought corporate charters to secure landholdings and the legitimacy of their government, which they viewed as a binding compact between themselves and the English Crown.
At the onset of war, the Berkshire Constitutionalists in 1774, led by Thomas Allen were formed. In 1776, the group made the claim that the Declaration of Independence had thrown people into "a state of nature" requiring new agreement to a social compact uniting men one to another and justifying majority rule. According to the group, the Massachussets legislature lacked the authority to constitute a new state government - "they being but servants of the people cannot be greater than their masters." An act of social compact was necessary to constitute government, "it being the foundation on which they [the legislators] themselves stand and from which the Legislature derives its Authority." Pittsfield Address to the General Court, Nov. 1778, Robert J. Taylor, ed., Massachusetts, Colony to Commonwealth: Documents on the Formation of Its Constitution, 1775-1780, Chapel Hill, c1961 as quoted in Gordon S. Wood, The Creation of the American Republic 1776-1787, W.W. Norton & Co., c1969, at 287.)
The New Hampshire Grant Towns had been tied to the New Hampshire Council only through the royal prerogative, unsecured by charter. They retreated into the ideological "state of nature" only insofar as their town's incorporating acts, viewing each act as a miniature constitution creating a separate state. As a larger state, they lacked legal documentation that they had become bound into a single body politic.
(Excerpts taken from Bernard Schwartz and Edwin D. Webb, Roots of the Bill of Rights, Vol. 2, Chelsea House Publishers, c1990, pgs. 276-285)
Delaware Declaration of Rights, 1776
"Section 1. That all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole."
Maryland Declaration of Rights, 1776
"I. That all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole."
Reference: Blackstone's Commentaries, "View of the Constitution of the United States," Section 1 - Nature of U.S. Constitution; manner of its adoption as annotated by St. George Tucker, William Young Birch and Abraham Small, c1803:
"...the end of civil society is the procuring for the citizens whatever their necessities require, the conveniences and accommodations of life, and, in general, whatever constitutes happiness: with the peaceful possession of property, a method of obtaining justice with security; and in short, a mutual defence against all violence from without. In the act of association, in virtue of which a multitude of men form together a state or nation, each individual is supposed to have entered into engagements with all, to procure the common welfare: and all are supposed to have entered into engagements with each other, to facilitate the means of supplying the necessities of each individual, and to protect and defend him. And this is, what is ordinarily meant by the original contract of society. But a contract of this nature actually existed in a visible form, between the citizens of each state, respectively, in their several constitutions...."
"...the social contract is understood to mean the act of individuals, about to create, and establish, a state, or body politic, among themselves...."
As was stated by the Court in the 1876 case of Munn v. State of Illinois, 94 U.S. 113:
"...When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. 'A body politic,' as aptly defined in the preamble of the Constitution of Massachusetts, 'is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.' This does not confer power upon the whole people to control rights which are purely and exclusively private, Thorpe v. R. & B. Railroad Co., 27 Vt. 143; but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government, and has found expression in the maxim sic utere tuo ut alienum non laedas. From this source come the police powers, which, as was said by Mr. Chief Justice Taney in the License Cases, 5 How. 583, 'are nothing more or less than the powers of government inherent in every sovereignty, . . . that is to say, . . . the power to govern men and things.'
