Constitution of Plymouth

The Plymouth Constitution is the founding instrument of the Province of Plymouth, subscribed by the towns of the Old Colony from 12 October 1874, and the only polity constitution in the United Kingdom of America that is not a grant, a settlement or a design but a covenant: an agreement the parties made with one another, to which the Crown is not a party, and from which the Province derives the whole of its authority.

This follows from a fact about Plymouth that is easy to state and takes a great deal of unpacking. Plymouth has never held a royal charter. Plymouth Colony was settled in 1620 under a patent for somewhere else, governed itself for seventy-one years under an agreement its own settlers subscribed aboard ship, and was extinguished in 1691 by the royal charter that enlarged its neighbour. When the Old Colony was restored in 1874 there was accordingly nothing to restore it by. No charter existed to be revived, no grant to be reissued, and no instrument of any kind in which the Crown had ever said what Plymouth was. What the towns had instead was what they had always had, which was one another.

So they did again what had been done in 1620. They subscribed.

The instrument that resulted is short, is written in a deliberately archaic register, and carries the Mayflower Compact of 1620 as its first article, in its original words, unamendable. It confers rights on towns rather than on persons, which exists nowhere else in the Realm. It gives a chamber of sixty-nine towns voting one apiece an absolute veto over legislation, over supply and over its own amendment. And it provides, in the seventh article, that a town’s subscription is irrevocable, which is the one thing a covenant is otherwise understood to permit, and which Plymouth wrote into the very instrument by which it had just left Massachusetts Bay.

The Realm’s Law Officers refused to accept it for seventeen years.

Status

What the Act required, and what Plymouth had

The Polity Instruments Act 1889 requires every polity of the Union to hold a single written instrument, providing for a legislature, an executive answerable to it and a judiciary, and to deposit it with the Law Officers. Forty-seven polities deposited without difficulty. Two did not, for opposite reasons: Rhode Island could not say what its constitution consisted of and took nineteen years to produce something, and Plymouth knew exactly what its constitution consisted of and spent seventeen years being told that it was not one.

The objection

The Law Officers’ objection was not the obvious one. Nobody argued for long that sixty-nine subscriptions were sixty-nine instruments; the covenant is a single text, engrossed once, and the subscriptions are subscriptions to it. The objection that held the deposit up for seventeen years was deeper and is better than Plymouth has ever been willing to admit.

Plymouth’s reply, made for seventeen years and with mounting irritation, was that the objection assumes what it sets out to prove: that a polity must be constituted by something above it, and that a polity constituted by the parts of which it is composed is therefore not properly constituted at all. That, said Plymouth, is a proposition about charters and not about polities, and a Province whose towns had governed themselves continuously through a hundred and eighty-three years of belonging to somebody else had rather better claim to constitutional continuity than several of the instruments the Law Officers had accepted without a murmur.

Neither side moved. The correspondence runs to eleven volumes and is the largest single body of constitutional argument the Act of 1889 produced.

How it was resolved

Plymouth conceded nothing of substance. The covenant was not amended, no article was added, no subordinating clause was inserted, and the Crown did not become a party. What changed was the manner of deposit, and the device that ended the argument was proposed by a clerk of the Old Colony Rolls Office in 1905 and accepted within four months.

Plymouth did not deposit the covenant. It deposited a certificate of the Rolls Office, under seal, attesting the full text of the covenant, the name of every subscribing town, the date of every subscription, and the fact that the instrument so attested was that by which the Province was governed. The certificate is a single written instrument. It is conclusive. It is deposited. And it is not the constitution, which remains in Plymouth.

The Law Officers accepted it in an opinion of some asperity, observing that the Province had satisfied the letter of the Act by depositing a document about its constitution rather than its constitution, and that as the Act did not in terms require otherwise the point was not worth further public money. Plymouth deposited in 1906, second to last of the forty-nine polities, ahead only of Rhode Island.

The Realm therefore holds a description of Plymouth’s constitution and has never held the thing itself. Plymouth is entirely aware of this, and of all the facts about the deposit it is the one Plymothians most enjoy repeating.

Citation

The instrument is cited by ordinal: the fourteenth article, never article 14. The usage is universal in the Province, appears in the law reports, and is an affectation of 1874 that has outlived every attempt to modernise it. Locally the instrument is the Covenant; the Plymouth Constitution is its formal name and is what outsiders call it.

History

The Compact, and the charter that never came

The Pilgrim community sailed in 1620 under a patent for a plantation in the Virginia territory, made landfall several hundred kilometres north of it, and found itself ashore in a place its patent did not describe. The agreement subscribed in the cabin before landing was a practical response to that difficulty: a company with no lawful authority over the ground it stood on, and some of whose members had already observed as much, bound itself to obey such laws as it should itself make.

It was never replaced. Plymouth Colony obtained patents from the Council for New England in 1621 and 1630 which described land and said very little about government, and it applied for a royal charter repeatedly across the whole of its separate existence. It never got one. The applications failed for reasons that were mostly incidental, being variously the Colony’s poverty, the political condition of England, the competing interest of its larger neighbour, and, at the last, the fact that by the time an application was pending the Crown had decided to consolidate New England instead.

The Old Colony therefore governed itself for seventy-one years on an authority it had manufactured. This was noticed at the time, was regarded in London as an irregularity that would eventually need tidying, and was tidied in 1691, when the royal charter enlarging Massachusetts Bay absorbed Plymouth and ended its separate government.

Plymouth’s constitutional argument, then and since, is that the Compact was never a defect. A charter is a grant, and a grant can be revoked, altered or forfeited by the granting authority, as Massachusetts Bay’s was in 1684 and as several colonial charters were. An agreement among the governed cannot be revoked by anybody who is not a party to it. On this view the Old Colony’s want of a charter, far from being the weakness that lost it its independence in 1691, is the reason its civic identity survived the loss.

The Register notes that this is an argument constructed after the event, that it was not made in these terms before the 1830s, and that it is nonetheless a good one.

The towns, 1691 to 1874

For a hundred and eighty-three years Plymouth was a region inside another polity, and the towns went on governing themselves in the manner they always had. Nothing about the 1691 Settlement disturbed the town meeting; the enlarged Province had no reason to interfere with it, and every reason not to.

This is the evidentiary basis of everything Plymouth later claimed. The Old Colony’s argument in 1874 was not that a lapsed thing should be revived but that a continuing thing should be recognised, and its proof was that the institution which had governed Plymouth in 1650 was still meeting, in the same rooms, under the same name, on the same business, in 1870. What had been extinguished in 1691 was the Province above the towns. The towns had never stopped.

The referendum of 1874

The restoration campaign ran in the Old Colony towns for a generation and was carried by referendum in 1874, town by town, in town meeting. That form was insisted upon and is the whole of its significance: a polity whose governing idea is covenant was restored by the only method it entirely trusts, and a legislative act alone would not have carried the same authority in Plymouth whatever its legal sufficiency.

The subscribing followed the voting and was a separate act. A town that had voted for restoration had voted; a town that had subscribed the Covenant had bound itself. The distinction is in the fourth article and matters a great deal, because the towns did not all subscribe at once.

The subscribing, 1874 to 1881

The Covenant was engrossed and first subscribed at Plymouth on 12 October 1874 by the deputies of nineteen towns. Another thirty-one subscribed within the year. The last town subscribed on 3 June 1881, seven years after the first.

No town refused. Several took their time, for reasons that were mostly parochial and are exhaustively documented, involving disputed town-meeting quorums, an unresolved boundary, two ministers who would not sign in the same room, and in one much-loved instance a town whose deputy lost the engrossed sheet between Sandwich and Plymouth and would not admit it for four months.

The seven-year gap has a constitutional consequence the drafters did not intend. Between 1874 and 1881 the Province existed, legislated and taxed while some of its towns had not subscribed the instrument constituting it, and the Assembly’s authority over an unsubscribed town in that period is a genuinely open question that Plymouth’s law faculties set to students annually. It has never had to be answered.

The sixty-nine towns

The parties to the Covenant are sixty-nine towns, and the arithmetic of the instrument only makes sense against what they actually are.

They range from New Bedford, a city of about a hundred thousand with a working harbour, a fishing fleet, processing plants and the Province’s largest concentration of industry, down to towns of a few hundred people on the Cape and in the Islands whose whole municipal establishment is a clerk, a treasurer and a board of selectmen who are paid in the low hundreds of pounds a year. Fifteen towns have populations under two thousand. Six have populations over thirty thousand. The median town has about nine thousand people and the mean has rather more, which is the whole problem with one town one vote stated arithmetically.

Nantucket is one town and one island and one county at once, which is convenient. Martha’s Vineyard is six towns on one island, which is not, and the six have had to be dealt with separately in the Council since 1874 despite sharing a ferry, a hospital and a water table.

New Bedford’s position is the one outsiders find hardest to credit. The largest place in the Province holds a single vote in a chamber that can defeat any bill including supply, the same vote as a town of four hundred, and New Bedford does not campaign against it. The city’s settled position, held across every party that has run it, is that the Council’s composition is the price of a Province that exists at all: the small towns carried the restoration in 1874, they subscribed on those terms, and a New Bedford that unpicked the bargain would be unpicking the thing that made it a city in a Province rather than a district in Massachusetts Bay. The compensation is the House of Burgesses, which is by population and where New Bedford’s weight is real.

The Register notes that this is a more generous account than most large cities in the Realm give of arrangements that disadvantage them, and that Plymothians outside New Bedford tend to assume it is permanent, which nothing about it guarantees.

The Wampanoag, and who was not asked

The Wampanoag nations were not invited to subscribe in 1874, and were not consulted about the restoration at all.

The Register states this plainly because it is the most serious thing in the instrument’s history and because Plymouth’s own account of it has, until recently, been an omission rather than a defence. A Province whose governing idea is covenant, restoring itself by covenant, on land held under a settlement imposed after a war, did not approach the one people with whom Plymouth had ever actually made a covenant.

That covenant was the treaty agreed with Massasoit in 1621, which was a real diplomatic instrument, held for about half a century, and broke down in 1675 in a war that fell most heavily on Plymouth and destroyed Wampanoag New England. Metacom’s head stood on a pike at Plymouth for something in the region of twenty years. Wampanoag and Narragansett captives, including women and children, were sold into Caribbean slavery in numbers that removed a substantial part of the surviving population, and the Old Colony financed part of its recovery by the sale.

The instrument of 1874 says nothing about any of this. It was not an oversight in the sense of something forgotten; the Wampanoag were present in the Province, in communities the Province could name, and the campaign for restoration ran for a generation without the question being raised in any surviving record. A covenant polity excluded from its covenant the people whose covenant it had broken, and then wrote irrevocability into the seventh article.

The thirtieth article, added in 2003, is the Province’s answer, and it is described below. It is a good article. It is a hundred and twenty-nine years late.

The text

The Covenant is thirty-one articles and something under four thousand words, which makes it the shortest polity instrument in the Realm after Rhode Island’s. It is written in a deliberately archaic register, in the manner of 1620 rather than of 1874, and the choice was contested at the time and defended on the ground that the form was the point: an instrument that looked like a modern statute would have been a modern statute, and what the towns were doing was the thing their ancestors had done.

The register is archaic and the language is plain, which are the same thing here. The Mayflower Compact is itself plain English, and 1874’s imitation of it produced short declarative sentences and almost no legal Latin.

The first article

Its inclusion was the most argued-about decision of 1874 and the most consequential. The Compact is reproduced entire, in its own words and its own spelling, and the second article provides that the first shall not be amended.

The orthography was itself contested and the outcome is the clearest single expression of what the drafters thought they were doing. A modernising party in the towns’ committee proposed regularising the text: the for ye, undertaken for vndertaken, civil for ciuill, on the reasonable ground that an instrument nobody could read easily was a poor foundation for a Province. It was defeated, and the minute recording the defeat is quoted in Plymouth to this day: that the committee was not composing a first article but copying one, and that a copy which corrects its original is not a copy.

The engrossers accordingly reproduced Bradford’s hand exactly, down to the transposed u and v, the doubled consonants, the ampersands and the middle points, and the first article of the Plymouth Constitution is consequently the only passage in any polity instrument of the Realm that a modern reader must slow down to get through. Plymouth regards the slowing down as part of the effect.

Three things follow. It makes Plymouth’s instrument, by its own account, the oldest constitutional text in force anywhere in the Realm, older than the Constitution of Massachusetts Bay by seventy-one years, and Plymouth makes the claim whenever the occasion permits. It supplies the model the rest of the document imitates. And it is, in operative terms, close to inert: the Compact binds people who are dead to a colony that no longer exists, and no Plymouth court has ever decided anything on it.

That last point is made by the Province’s own constitutional writers, who add that inertness was rather the intention. The first article is there to say what kind of instrument this is.

The second to the seventh articles: the Covenant itself

The third article is the whole constitutional argument in two clauses. The towns covenant into one Province and then take upon themselves the government of it, which is the Law Officers’ objection stated by Plymouth as though it were an answer. There is no grant, no reception of authority, and no moment at which anything is conferred from outside. The subordination to the Charter of Union is a recital of a fact rather than a concession of a power, and the drafters chose the words with care.

The seventh article is the difficulty. A covenant is the one instrument form that in principle admits of departure, since a thing entered into may be left, and Plymouth foreclosed it in the same document by which Plymouth had just departed from Massachusetts Bay. The Province does not discuss this. Raising it in Plymouth is a small social error of the kind visitors make once, and the standard reply, when a reply is given at all, is that the towns were never absorbed and therefore have nothing to leave, which answers a different question.

The fifth article’s schedule has been amended twice, in 1911 and 1979, both times to record a merger of towns consented to under the sixth.

The eighth to the thirteenth articles: what a town holds

These are the rights of towns, and they are the instrument’s real work. No other polity constitution in the Realm confers rights on anything but persons.

The thirteenth article is why the others are worth anything. The Constitution of Ohio is the corpus’s standing demonstration that a right is worth the remedy attached to it and nothing more, and Plymouth’s drafters, who cannot have known that, attached the remedy in the same breath as the rights. A town of nine hundred people may sue the Province in its own name and cannot be made to pay the Province’s costs, which means the smallest town in the Old Colony can litigate against Plymouth without being bankrupted for trying.

It has been done fifty-one times since 1874 and the towns have won thirty-four.

The fourteenth article

One sentence, no operative content, and the most quoted line in Plymouth. It is cited in argument constantly, has been relied on by the Old Colony Bench as an aid to construing the ninth article, and is on the wall of a very large number of town halls.

The drafters put it in as a statement of principle and the Province has treated it as something closer to a rule of interpretation: where the ninth article is ambiguous, the fourteenth decides which way the ambiguity falls, which is toward the town.

The fifteenth to the twentieth articles: the Captain-Regent

The two-year term is the point of the office and is unique in the Realm, where vice-regal appointments run five years or more and one runs seven. It was insisted on by the towns in 1874 and the reasoning is recorded: a vice-regal office held for a long period accumulates a household, a following and eventually a faction, and the towns had spent a hundred and eighty-three years watching a Province they did not control and did not intend to build another.

Reappointment is allowed and is usual. The great majority of Captain-Regents serve two or three terms and several have served five, so the practical tenure is not short; what is short is the interval at which the appointment must be renewed on the advice of a High Warden who may by then be a different person from the one who advised it. A Captain-Regent who becomes a nuisance is not dismissed. The term simply ends.

The convention that the office rotates among parts of the Province is strong and is not in the Covenant. Since 1874 the appointment has alternated, with a regularity nobody has ever needed to write down, between the mainland towns, the Cape, and the Islands, and a High Warden who advised three mainland Captain-Regents in succession would be told about it.

The twenty-first to the twenty-sixth articles: the Warden and the Assembly

The twenty-first article names the trust that the title implies, which the Province thinks the best line in the instrument and outsiders generally miss: the High Warden does not hold the government of Plymouth, but keeps it, and keeps it for the towns. It has been cited in argument about ministerial duty more often than any other article except the fourteenth.

The twenty-fifth article is the loaded gun, and it is described below.

The twenty-sixth article puts the rotation of the Council into the Covenant and leaves the order and the number of days to statute, which is the arrangement the Constitution of California reached from the opposite direction a hundred and forty-five years later. The Council sits in each of the sixty-nine town halls in turn on a cycle that presently runs about eleven years, and a town’s turn is a substantial local occasion.

The twenty-seventh to the thirty-first articles

The Council of Towns, and the loaded gun

The twenty-fifth article gives the Council of Towns an absolute veto on every bill including supply, and the twenty-fourth gives every town one vote irrespective of size. Together they mean that thirty-five towns, which may between them contain under a tenth of the Province’s people, can stop the Province’s budget.

No other second chamber in the Realm can defeat supply. The federal Lords cannot; California’s Council of Regions cannot; Ohio’s Senate may delay a money bill for thirty days and no longer. Plymouth’s Council can simply refuse, and the refusal is final.

The drafters knew what they were doing and said so. The Council’s powers were the price of the small towns’ subscription in 1874, and the argument made to them was precisely that a chamber which could not stop the money could not stop anything. The Province has lived with the arrangement for a hundred and fifty-four years and it has gone off once.

The supply crisis of 1957

In the autumn of 1957 the Council of Towns refused supply, over a schools consolidation the Warden’s ministry had proposed and which would have closed schools in nineteen small towns. The refusal was carried by forty-one votes to twenty-eight; the forty-one towns held about a third of the Province’s population between them.

The Province had no money from 1 January 1958. The Assembly could not be dissolved into a solution, since a dissolution returns the Burgesses and not the Council, whose members are chosen by their towns on a separate cycle. The Captain-Regent had no power that reached it. The federal government’s law officers advised, unhelpfully and correctly, that the Realm had no standing to intervene in a polity’s internal deadlock and that the Polity Instruments Act conferred no power to do so.

It lasted eleven weeks. It ended when the ministry withdrew the consolidation entire, which is to say that the small towns won completely, and the settlement that followed is the reason school closures in Plymouth still require the consent of the town under a statute nobody has since dared repeal.

The episode is remembered in the Province with something close to satisfaction, which visitors find remarkable. The Plymouth view is that the constitution worked: a ministry proposed to do something to nineteen towns that those towns did not want, the towns had been given a means of stopping it, and they stopped it. The alternative view, held by every constitutional writer in the Realm who is not from Plymouth, is that a polity of 1.4 million people was without lawful funds for eleven weeks because of a dispute about nineteen village schools.

Both views are in the Province’s own histories, and the Register does not resolve them.

The rights of towns in practice

The eighth to the thirteenth articles are the part of the Covenant that touches ordinary government, and the thirteenth is the reason they function.

Fifty-one actions have been brought by towns against the Province since 1874 and the towns have won thirty-four. The rate is high because the actions are cheap: a town cannot be made to pay the Province’s costs, so a town with a genuine grievance and a part-time clerk can bring one, and towns do.

The ninth article, guaranteeing the town meeting, is the most litigated. The Province has three times attempted to require towns above a certain size to adopt a representative form of local government, in 1913, in 1961 and in 1998, and has lost all three times, the Bench holding on each occasion that the ninth article means what it says and that the fourteenth article settles any doubt about which way it leans. The consequence is that Plymouth has open town meetings in places that elsewhere in the Realm would have a council, including two towns of over twenty thousand people, and that the Province’s local government is, by any comparative measure, absurdly labour-intensive and unusually well attended.

The twelfth article, forbidding an unfunded duty, is the most useful. It is invoked several times a decade, usually without litigation, because the Province’s own legislative drafters now check bills against it as a matter of routine, and a bill that fails the check is amended before introduction. Plymouth’s ministries have complained about the article since 1874 and none has proposed repealing it.

The eleventh article, on commons, landings and ways, is the one with the most interesting case law and the smallest practical footprint. It has generated a body of doctrine about herring runs, town landings, cartways to the shore and burying grounds which is genuinely peculiar to Plymouth and which the Realm’s property lawyers read for pleasure.

The tenth article, requiring that a town be heard before the Province does anything touching it alone, is the one that has aged best. It is procedural, it is cheap to comply with, and it anticipates by a hundred and forty-five years the reasoning that produced California’s public reasons duty. Plymouth points this out.

Amendment

The Covenant has been amended seven times in a hundred and fifty-four years, which is fewer than any instrument in the Realm except Massachusetts Bay’s charter, and the reason is the twenty-eighth article.

An amendment must first be agreed by the Council of Towns, where every town has one vote and the small towns are a permanent majority, and must then be approved by a majority of the towns in town meeting, where every town again has one vote. An amendment therefore has to be carried twice through a body of sixty-nine parties in which population is irrelevant, and the second passage requires sixty-nine separate public meetings to be convened, warned, held and returned.

The practical effect is that an amendment opposed by the small towns is impossible and an amendment merely inconvenient to them is unlikely. Every proposal since 1874 to weight the Council by population has failed, necessarily, since it would have to be carried by the towns it disadvantaged.

The seven amendments are:

Six of the seven are housekeeping. The seventh is the only amendment that changed what kind of instrument the Covenant is.

The thirtieth article

The Wampanoag chapter was negotiated between 1997 and 2002, agreed with the Mashpee Wampanoag and the Aquinnah Wampanoag as the two federally and provincially recognised nations of the Old Colony, put to the Council of Towns in 2002 and to the towns in 2003, and carried by sixty-one towns to eight.

What it does

It does four things and refuses a fifth.

It acknowledges the covenant of 1621 and states that Plymouth broke it, in those words, which is the first time any instrument of the Province has said so. It acknowledges that the nations were not asked to the Covenant of 1874. It states that the Province holds what it holds in consequence, which was the sentence the nations’ negotiators would not give up and which the towns were told plainly they were being asked to subscribe to. And it imposes a consultation duty on anything touching lands, waters, fishing, burial places or remains, enforceable in the Old Colony Bench on the question whether the consultation was truly made.

It is not a settlement and does not purport to be. The nations declined to become subscribing parties, for the reason nations have declined elsewhere in the Realm: a party is bound, and to be bound by the Covenant might be read one day as having settled something. They are named in the article and are not signatories to the instrument, which means the thirtieth article is a promise the towns made about the Wampanoag rather than a covenant made with them, and both sides say so.

The eight towns

Eight towns voted against, and the Province has never pretended otherwise or omitted the number. Their stated grounds, recorded in eight sets of town-meeting minutes which the Rolls Office has published, were in six cases about the phrase holds what it holds in consequence and its possible effect on title, and in two cases about nothing that can be read charitably.

The article carried, the eight towns are bound by it as the sixty-one are, and the Province’s practice since has been to name them when the article is discussed. Plymouth’s view is that a covenant polity that concealed a dissent would be lying about what a covenant is.

Nine years on

Twenty-five years on, the consultation duty has been litigated four times and the nations have succeeded in three. The most consequential concerned a ferry terminal expansion at which the Province had consulted the Aquinnah for eleven days, and in which the Bench held that a consultation conducted to a timetable set by the party consulting is not truly made.

What the nations say about the article publicly is measured and is not grateful. The formulation used in the Mashpee council’s twentieth-anniversary statement, which is much quoted, is that the Province spent a hundred and twenty-nine years describing itself as a covenant and then discovered that it had been one party short.

The Captain-Regent in practice

The office is small, is genuinely ceremonial, and is unlike any other vice-regal office in the Realm chiefly in its rhythm.

A Captain-Regent is appointed for two years on the High Warden’s advice, and reappointment is usual, so the office in practice runs in a series of renewals rather than a term. Forty-one people have held it since 1874, against seven Governors of Ohio in the same period under a five-year term and rather fewer in polities with longer ones. The median tenure is six years and the record is Josiah Bearse’s fourteen, from 1902 to 1916.

The renewal is the discipline. A Captain-Regent whose conduct has become awkward is not dismissed, is not asked to resign and is not the subject of a crisis; the term ends, another appointment is made, and the outgoing holder is thanked. This has happened four times in a hundred and fifty-four years and on none of those occasions was anything said publicly by anybody. The Province regards the arrangement as the most sensible thing in the Covenant and the rest of the Realm has never copied it, on the ground that a head of state who must be reappointed every two years is a head of state on probation, which is what Plymouth intended.

The rotation among mainland, Cape and Islands is convention and not law, and has held without a single deliberate breach. The present Captain-Regent is Ruth Nickerson, of Nantucket, in her second term.

The nineteenth article’s succession provision, amended in 1949 to cover incapacity, gives the office to the senior judge of the Old Colony Bench pending an appointment within sixty days. It has been used twice, in 1931 and in 1988, on both occasions for under a month.

The Rolls Office and the subscriptions

The Old Colony Rolls Office at Plymouth holds the Covenant under the twenty-ninth article and is required to let any person see it. The requirement is discharged more literally than the drafters can have imagined.

The engrossed instrument and the sixty-nine subscriptions are on permanent public display, in a long case, in the order the towns subscribed, and the display is the thing that most surprises visitors about Plymouth’s constitutional culture. School parties are taken to find their own town’s signature. Towns hold anniversaries of their own subscription rather than of the Province’s founding, which produces a scatter of small civic occasions across the calendar from October to June rather than one provincial day. The town whose deputy lost the sheet between Sandwich and Plymouth in 1875 marks the date of the recovery.

The Rolls Office also holds the eleven volumes of correspondence with the Law Officers, the 1905 certificate in draft, and the minutes of every town meeting at which a town subscribed or voted on an amendment, and it publishes them. It is a working archive rather than a museum, and its constitutional function under the twenty-ninth article means that a Plymouth constitutional argument is conducted from primary documents to a degree that is unusual anywhere.

The offices and the Assembly in practice

The High Warden

The twenty-first article’s word keeps has done more work than any other verb in the instrument. A High Warden does not hold the government of Plymouth but keeps it, and keeps it for the towns, and the formula is quoted at ministers by backbenchers, by the Council of Towns and by town clerks with a frequency that Wardens find wearing and do not contest.

It has real doctrinal content. The Old Colony Bench has twice construed a ministerial power narrowly on the footing that a power kept in trust for the towns is not a power to be used against them, most consequentially in 1998 in the third of the town-meeting cases. Whether that is sound law or an elegant way of reaching an obvious result under the ninth and fourteenth articles is argued about in the Province and outside it.

The present High Warden is Teresa Almeida, of New Bedford, at the head of a Labour and Social Democratic ministry supported by two independent town members. She is the first High Warden from the Province’s Portuguese and Cape Verdean community, which is a substantial part of what New Bedford and the Buzzards Bay towns are, and the Province noticed the fact more than she has ever invited it to.

The two Houses

The House of Burgesses is eighty-one members from single-member districts on population, elected for four years, and it holds confidence and supply in the ordinary way. It is where the Province’s national party politics happens: the six parties of the Realm all contest it, no party has held a majority since 1994, and Plymouth ministries are coalitions or minorities.

The Council of Towns is sixty-nine members chosen by their towns for four years on a separate cycle, and its politics is not national at all. Roughly half its members sit as independents, party discipline is weak and is regarded locally as slightly improper, and a Council division tends to divide small towns against large ones rather than left against right. A High Warden manages the Burgesses through a whip and the Council through correspondence with sixty-nine town clerks, which is a genuinely different job and which is why Plymouth ministries employ a Warden’s Secretary for the Towns whose whole function it is.

The consequence is that Plymouth’s two chambers cannot be captured by the same thing. A party that sweeps the Burgesses has done nothing whatever about the Council, whose members were chosen by their towns for reasons that had little to do with the Province and nothing to do with the Realm. This is the closest the Covenant comes to a separation of powers and it was not designed; it fell out of the twenty-third and twenty-fourth articles.

The Islands, and Aquinnah

Martha’s Vineyard and Nantucket subscribe as towns like any other, and the Islands District that coordinates ferry continuity, housing and seasonal services is a creature of statute rather than of the Covenant. The island towns therefore hold their votes in the Council in their own right and their District holds nothing, which suits the towns and frustrates every provincial minister who would prefer to deal with one body.

The position of Aquinnah is the awkward one. The town sits within the Islands District; the Aquinnah Wampanoag are a nation named in the thirtieth article; and the town and the nation are not the same body although they occupy substantially the same ground and a great many of the same people belong to both.

The Covenant handles this badly, because it was not written to handle it at all. A town has rights under the eighth to the thirteenth articles and may sue under the thirteenth. A nation has a consultation right under the thirtieth and may be heard under it. When the Province proposes something at Aquinnah, it must consult the nation and hear the town, and the two proceedings are separate, are differently constituted, and can reach different conclusions. They have done so once, over a landing in 2011, and the resulting muddle is the single most cited argument for a further amendment.

Nobody has proposed one, because the obvious solutions all involve either subordinating the nation to the town, which the nation will not accept and the Province will not propose, or giving the nation a town’s rights, which would make it a party to a Covenant it deliberately did not join.

The Old Colony Bench

Plymouth’s superior court is the Old Colony Bench, of nine judges, appointed by the Captain-Regent on the High Warden’s advice under the twenty-seventh article, holding office during good behaviour and removable only on the address of both Houses. There is no elected judiciary, which distinguishes Plymouth from the interior polities and which was never argued about in 1874; the towns wanted judges who could not be got at, and an elected bench in a Province of sixty-nine towns would have been a bench of local men.

The Bench’s constitutional work is almost entirely the thirteenth article, and it has developed a procedure for it that exists nowhere else. A town’s action against the Province is heard on documents, without pleadings, in the town concerned, and the Bench sits in the town hall to hear it. The practice began in 1889 as a convenience and hardened into a rule, and the reasoning now given for it is that a town suing under the thirteenth article is asserting a right of the town, and the town ought to be able to attend.

The Bench also hears the thirtieth article’s consultation questions, and has been notably firmer in that jurisdiction than in the eleventh-article commons cases, which the nations have observed publicly and the Province has not answered.

What is contested

Three things are argued about in Plymouth and none of them is likely to be settled.

Whether the Council should be weighted. The case is arithmetical and unanswerable: thirty-five towns holding under a tenth of the people can stop the Province’s money. The case against is that this is the arrangement the small towns subscribed for, that weighting the Council would be a breach of the bargain of 1874 in substance whatever its form, and that in the one instance where the power was used the small towns were right. It cannot be carried in any event, since the twenty-eighth article requires it to be approved by the towns it would disadvantage.

Whether a covenant binds people who never subscribed to it. Nobody now living subscribed the Covenant, and the towns that did are corporate bodies whose members have turned over entirely six or seven times. The Province’s answer is that a town is a continuing body and its act is its own, which is orthodox and which does not satisfy the objectors, whose point is that the whole moral force of a covenant is consent and that consent is precisely the thing nobody alive has given. This is the argument that most engages the Province’s law faculties and least engages its voters.

The Islands and Aquinnah, described above.

The seventh article is not argued about, which is the subject of the section that follows.

What is not discussed

Plymouth seceded from Massachusetts Bay in 1874 and, in the instrument by which it did so, forbade its own towns from ever doing the same.

The seventh article provides that a subscription cannot be withdrawn and that no town may depart from the Province. It was not imposed by the Law Officers, who did not ask for it and who would have been content with a good deal less; it was Plymouth’s own, drafted by the towns’ own committee, subscribed by towns that had themselves voted eighteen months earlier to leave a polity of which they had been part for a hundred and eighty-three years.

The Province does not discuss this. It is not defended, not explained and not taught; raising it in Plymouth is a small social error of the kind visitors make once and do not repeat, and the reply, when there is one, is that the towns were never absorbed and so have nothing to leave. That answer addresses the question of whether the towns lost anything in 1691 and not the question of whether a town may leave now, which is a different question and the one being asked.

The Register states the contradiction because the Register states failings plainly and because this is a failing of a particular kind: not a wrong done to anybody, but a polity declining to apply to itself the reasoning by which it exists. Plymouth’s entire claim against Massachusetts Bay was that a civic community which had never consented to its absorption retained the right to constitute itself. The seventh article says that a civic community which has consented has no right to unconstitute itself, ever. Both propositions may be true. Nobody in Plymouth has set out the argument that reconciles them, in a Province that has otherwise argued about its own constitution continuously for a hundred and fifty-four years and published the arguments.

The Covenant and the Realm

A constitution that derives its authority from below still sits under a Charter of Union and under the law of the Realm, and Plymouth’s arrangements for that are unusual because the Covenant refuses to say so directly.

The third article recites that the towns covenant into a Province within the United Kingdom of America and under the Charter of Union, and it stops there. There is no supremacy clause, no provision that federal law prevails, and no article corresponding to California’s, which writes its own subordination into the text. The drafters’ position, stated in the towns’ committee minutes and never departed from, was that the Charter of Union binds Plymouth because Plymouth is in the Union and not because Plymouth’s constitution says it does, and that an instrument which conceded the point would be conceding that its authority came from the concession.

This has never caused a difficulty, for the sufficient reason that Plymouth has never legislated in a manner requiring the point to be tested. The Province’s constitutional writers observe drily that a polity of 1.4 million people with sixty-nine veto-holding towns is not well placed to pass anything adventurous.

1962

The extension of the American Rights Act to the polities in 1962 was the one moment when the Covenant’s silence might have mattered, since the Act reached every public authority in the Realm and Plymouth’s constitution contains no rights of persons at all.

Nothing happened, and the reason is instructive. The Covenant confers rights on towns and is silent about persons, and a document that is silent cannot be inconsistent. The Act supplied the rights of persons in Plymouth as it supplied them everywhere; the Covenant went on supplying the rights of towns, which the Act does not touch; and the two have run alongside each other for sixty-six years without meeting.

Plymothians are apt to describe this as foresight. It was not: the drafters of 1874 conferred no rights on persons because they were not writing a bill of rights, having no reason to think a Province needed one when its towns had governed themselves for two hundred and fifty years without. The result was lucky rather than clever, and the Province’s better historians say so.

The Act does reach the towns, which are public authorities within it, and this is the one place where the two instruments touch. A town exercising its ninth-article right to govern by town meeting exercises it subject to the Rights Act, which means an open town meeting in Plymouth is bound by federal duties of equality and fair procedure that the meeting itself never voted for. There was resistance to this in the 1960s, it did not last, and it is now unremarkable.

The section 6 power

Section 6 of the Polity Instruments Act permits a Law Officer of the Crown to certify a provision of a polity instrument inconsistent with federal law, which strikes it out. It has never been used against Plymouth, which is not surprising given the Covenant’s silences, and the more interesting question is whether it could be.

The certificate deposited in 1906 attests the Covenant; the Covenant itself is in Plymouth. A certificate under section 6 would strike a provision out of the deposited instrument, which is a certificate about a document, and what that would do to the document is a question the Act does not answer and nobody has needed to. Plymouth’s law faculties enjoy it. The Law Officers, on the one occasion they were asked, replied that the question was hypothetical and that they proposed to keep it that way.

The fourth class

The Realm’s polity constitutions have fallen into three classes, and Plymouth’s makes a fourth.

The charter instruments are grants: Massachusetts Bay governs under a royal charter of 1691 that describes a government it no longer has, and Rhode Island’s deposited instrument of 1908 enumerates its towns and declines to say what their prerogatives are. Authority descends.

The negotiated instruments are bargains between parties: Louisiane, and the March Charter of 1884, sealed between the Crown, the settlers and the Indigenous nations, which is a treaty in constitutional form. Authority is exchanged.

The designed instruments begin at Chillicothe: Ohio in 1803 with no charter to adapt and no counterparty to bargain with, and California in 2019 after a scandal, both of which answered a set of questions from first principles. Authority is constructed.

The covenanted instrument is Plymouth’s alone. Authority does not descend, is not exchanged and is not constructed. It is pooled: the parties bring what they already have, which in Plymouth’s case is sixty-nine self-governing towns, and the Province is what exists after they have combined. There is no other example in the Realm and there is unlikely to be another, because the form requires a polity whose parts governed themselves before the whole existed, and the Realm contains very few such places and only one that was absorbed, held together for a hundred and eighty-three years, and got out.

The Law Officers’ objection of 1889 was that this is not a constitution at all. A hundred and thirty-nine years later the Realm’s constitutional writers still divide on it, and the division is not really about Plymouth. It is about whether a polity must be constituted from above, and Plymouth is the only case anybody has.

Assessment

The Plymouth Constitution is the most eccentric instrument in the Realm and one of the best made.

Its virtues are unfashionable and are real. It attaches a remedy to every right it confers, in the same breath, which Ohio did not manage in 1803 and California only managed in 2019 after two centuries of watching what happens when you do not. It confers those rights on the bodies that actually needed protecting, which in a Province of sixty-nine towns and no dominant city are the towns. It made its head of state renewable every two years and thereby solved, by a mechanism nobody has copied, a problem other polities address with crises. And it is short, is written to be read aloud in a room, and is understood by a proportion of its population that no other polity in the Realm could approach, for the sufficient reason that a great many Plymothians have stood in a hall and voted on it.

Its faults are the faults of its virtues. The Council of Towns can stop the Province’s money on the votes of towns containing a tenth of its people, and in 1957 it did, for eleven weeks, over nineteen village schools. Amendment requires sixty-nine town meetings and a double majority of towns, which means the arrangement most in need of revision is the one arrangement that cannot be revised. And the instrument was subscribed by sixty-nine parties in a Province that contained, then as now, a people who were not asked.

What Plymouth demonstrates, and what makes the article worth writing, is that a constitution can derive its authority from below and work. The Law Officers said in 1889 that this was impossible in principle. The Province has spent a hundred and thirty-nine years being a going concern in reply, which is not an argument but is difficult to answer.

Chronology

Trivia

See also

• Province of Plymouth, the polity this instrument governs
• Polity Instruments Act 1889, which refused the deposit for seventeen years
• Constitution of Massachusetts Bay, the charter of 1691 that absorbed the Old Colony
• Province of Rhode Island and Providence Plantations, the only polity to deposit later
• Constitution of Ohio, the designed instrument, and the corpus’s lesson that a right is worth its remedy
• Constitution of California, which reached Plymouth’s rotation of sittings from the opposite direction in 2019
• Constitution of the March of Arizona, the negotiated instrument whose Indigenous nations are parties