Religion, law and the constitution

Balancing beliefs in Britain

There is no ‘phone, internet, or even postal service. You are about to be left on the edge of the known world, a long way from where anyone is expecting you to be. You had intended to settle on a different part of the coast, but the weather and circumstances changed your plans.  The only people on the planet who know your whereabouts are soon to depart on an aging merchant ship, which may or may not make it safely back across the Atlantic. If, or more realistically, when, something goes wrong, hope will not be coming to you any time soon.

For many of us in the XXI century, it is hard to imagine this degree of vulnerability and isolation.  Nevertheless, this was the situation of the settlers on board the Mayflower in the XVII century.  Aside from the physical challenge of survival in a new, and often harsh, physical environment, there was the urgent need to cohere into a reasonably ordered and secure society.  From an individual viewpoint, the perils of community strife were far greater than they had been in England, and if an individual or family were rejected or attacked by their fellow settlers, there were no neighbouring European villages or magistrates to provide refuge or redress.  Equally, if the fledgling village had split into factions and invested too much precious time and energy on infighting, their already slim odd of surviving and flourishing would rapidly plummet downwards.

All of this would have been daunting enough, had the group been the close-knit community of pilgrims that they are often imagined to have been.  However, the reality was far more complex than this, as the radical Protestant “Separatists” who rejected the Church of England, and saw an America colony as a chance to build a Godly society free from persecution, were not numerous or rich enough to take on the venture alone. Their financial backers insisted that on making up the numbers they should be brought together with other enterprising, adventurous or desperate souls who were looking for opportunities in the New World.   Therefore, from the very beginning, it was a much less homogenous group than is frequently supposed.

To complicate matters still further, they did not have either a Charter setting out who would be Governor of the colony, or a Royal Permission (patent) authorising them to settle in a different location from the one that they had already planned. This meant that they did not have an established legal framework to regulate their collective life, and the response to this was “The Mayflower Compact”, a document signed by the adult male settlers.  In addition to reaffirming their loyalty to King James I and VI, the signatories pledged:

“by these presents solemnly and mutually in the presence of God and one of another, Covenant and Combine ourselves together in 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, Constitutions 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.”

This declaration, and indeed the document as a whole, is a remarkable episode in the history of Public Law and constitutional Government.   Although there are, of course, many aspects of the process which would be disturbing to modern eyes, not least the assumption that women were not agents in body politic, it was nonetheless a radical approach.  

This represented a group of individuals choosing to submit themselves to the Rule of Law, and a Constitution created by a process in which each of them had a stake, regardless of class or property.  In some respects, it foreshadowed some of the questions which would be aired in England during the Civil War era, in particular the Putney Debates.  This is not to pretend that the people involved had a modern, democratic worldview, but it is undoubtedly a remarkable undertaking.  The fact that hired men and servants appear to have been included is striking.

It also raises questions about why the Rule of Law is so key as a concept, and the way in which it is both an affirmation and outworking of the interdependency of human beings. In the extreme situation of the Pilgrims, the necessity of legal rules for both individual and collective security was thrown into painfully sharp focus, but the same underlying principle applies to modern societies with millions of participants.  

It goes without saying, one person is not in a position to opt in or out of the Rule of Law wholesale (whatever Freemen on the Land conspiracy theorists might believe). Yet the enforceability of legal rules depends upon voluntary compliance in many instances, and if a considerable number of individuals refuse to accept a particular edict, enforcement becomes untenable.  Importantly too, it remains the case that law should not be seen exclusively in terms of hierarchical control, but as a mechanism for enabling both person and collective flourishing. 

Without doubt, it is important that we have laws to protect our person and property, because everyone needs to be safe, but more than this, legal frameworks exist to secure the rights and dignities of citizens.  This is crucial not just for individuals who are the recipients of the rights, but also for society as a whole. Indeed, the latter be poorer if some people are excluded, marginalised and not permitted to contribute to their full potential.

In colonial America, losing able bodied adults put the whole community at increased risk, as essential work relied on the strength and skills of both men and women, and every pair of hands counted in the struggle to provide food, shelter and security.   Although in our context, we might not personally be faced with building our own homes, and producing food, fuel and clothing, we are every bit as dependent on our neighbours as we ever were.  Unquestionably, if some people denied the chance to use their energy and gifts because of prejudice or discrimination, the community as a whole will lose out.  Who knows how many brilliant artists, scientists, doctors, teachers etc the world lost out on, because individuals were arbitrarily denied education and other opportunities?

The passengers on board the Mayflower were acutely conscious of the importance that law had in determining whether their society succeeded or failed.    We might not be in a position of such acute jeopardy, but the same is true for all of us in 2022.


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