Preserving the Past, Informing the Future
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According to the New York Times, by the year 2050 the U.S.A. and the U.S.S.R. may be cooperating in establishing a joint colony on Mars. The colonists of the 21st century, who venture into entirely unfamiliar territory, devoid of a legal structure, may well have to make decisions about a governmental system, as did the first colonists to enter Connecticut in 1636. In the 1600's, a trip to the New World was equivalent to a trip to Mars.
The Connecticut settlers came into a spacious valley where Indian tribes were scarce (they had unfortunately succumbed to a white man's disease--smallpox--in large numbers) and a land which had never felt the touch of Western civilization. These pioneers were Puritans or Congregationalists, dissatisfied with the slow pace of Anglican reforms to the Catholic ritual, determined to establish an ecclesiastical society subject to their own rules and regulations.
They had first come to Massachusetts after 1630, along with a large number of other Puritans, seeking to escape religious persecution in England as well as seeking economic opportunity and a safe haven from the coming political turmoil which eventually led to the beheading of Charles I. Massachusetts was to be the place to establish the utopian goal of a Biblical Commonwealth.
Here, in Massachusetts, three communities of Puritans felt themselves increasingly shut out from the government established by their Massachusetts brothers. They resented the power of the magistrates who were not elected by the people. But they also wanted to expand their land holdings and looked to the available Connecticut valley rather than crowded Massachusetts for this expansion.
So it was that the three river towns of Windsor, Wethersfield and Hartford came to be founded by the Congregationalists in 1635-6. What law would govern these towns? When the Massachusetts General Court, that colony's governing body, gave permission to settle Connecticut, the Court assumed that it would supply the leadership and the legislation necessary to form a government. But a dispute soon arose with a group of rich Puritans in England who claimed to "own" Connecticut. These Puritans had received a "patent" or grant from the Crown in 1631 which gave them title to much of the area southwest of Massachusetts.
Those that held the patent, known as the Warwick Patent (named for the Earl of Warwick), also wanted their interests protected in the composition of the new government. After heated discussions between the General Court, the Connecticut settlers, and the Warwick patentees, a document emerged creating a body known as the March Commission. The document was drawn by one of the new settlers of Windsor, Roger Ludlow, who had been trained as an attorney in England. This was a good outcome for the settlers, as there was formal recognition of permission to settle in Connecticut by the patentees; the patentees were also pleased because now their land would have inhabitants and laborers.
The March Commission was to be a temporary solution to the conflict between Massachusetts, the colonists and the patentees and was to have a life of only one year-March, 1636 to March, 1637. Under the watchful eye of the patentees' local representative, John Winthrop, Jr., the Massachusetts General Court appointed a commission of eight "magistrates" which included Roger Ludlow and William Westwood who had previously been serving as a constable in the territory. Two magistrates represented each of the three River Towns and two magistrates represented Springfield, which was allied with Connecticut at that time. During its year of existence, the Commission was to consider further the governmental structure and resolve any problems in the conduct of the affairs of the colony. As it turned out, each of the Commissioners lived in the Connecticut Colony; there were no absentees from Massachusetts or elsewhere.
For a temporary body, the March Commission exercised extensive power. Some important actions were taken at eight meetings held by Commission during this year--It established a new church in Wethersfield, regulated trade with Indians, considered matters of defense, ruled on probate cases, surveyed town land, renamed towns, and resolved a sticky problem involving indentured servants. What was to happen with Connecticut's government after the expiration of the March Commission? Clearly Massachusetts wanted to treat Connecticut as its dominion and exert its legal authority over the new colony. This did not happen, however. Perhaps difficulties in communication and transportation between the two colonies gave Connecticut its chance to move toward independence. In any event, a revolutionary event occurred; in May, 1637, there was an election in Connecticut which led to a general court for the colony consisting of deputies and magistrates. The Connecticut colonial government was about to begin.
There was another election to choose members for a general court held in March, 1638, and the
resulting body was composed of 12 deputies elected by the inhabitants of the towns and magistrates, in all probability, chosen by the deputies. While there was a government in place, the times demanded a more formal arrangement and a document setting forth the structure of the government. The community of Springfield, under the direction of William Pyncheon, had recently withdrawn from its connection with the Connecticut settlement. Indians were threatening the populace; the Pequots had staged a surprise raid on Wethersfield leaving nine settlers dead.
Discussion of the new government and the need for unity had occurred in the General Court. On May 29, 1638, moreover, Roger Ludlow wrote to Massachusetts Governor Winthrop that the colonists wanted to "unite ourselves to walk and lie peaceably and lovingly together." It has been proposed "to bring ourselves to some rules, articles and agreements."
This language of Ludlow's was very similar to that used in the document which emerged known as the Fundamental Orders. Historians agree that the evidence points to Ludlow, the colony's only trained attorney, as the draftsman of the new code.
On May 31, 1638, two days after Ludlow wrote to the Massachusetts colony about his drafting efforts, congregationalist minister Thomas Hooker delivered his election sermon to an adjourned meeting of the General Court. Hooker, the founder of Hartford, came to Connecticut from Massachusetts with a group of settlers in May, 1636. As Loomis and Calhoun have pointed out, when Hooker spoke:
He was a pastor of the only church in the largest town, and his sermon was delivered to the very men who were then the governing power and who were to be most influential in framing the new form of government. What wonder then these views, doubtless repeated and emphasized in private conference, were reflected in the constitution that was subsequently adopted.
Hooker entitled his sermon "A Survey of Church Discipline". He sought to give the theoretical basis for the new government and the union of the three River Towns-Windsor, Wethersfield, and Hartford.
All that is left of the sermon is a few lines taken down by Henry Wolcott, an eyewitness. Hooker declared that God was the source of all law, but the people, on "God's allowance" have the power to appoint officers and magistrates and to set bounds and limitations. He continued in a cautionary tone:
The privilege of election which belongs to the people...must not be exercised according to their humours, but according to the blessed will and law of God...as God hath spared our lives, and given us them in liberty, so to seek the guidance of God, and to choose in God for God.
This sermon was hardly liberal in its approach to democracy. Hooker did not cast his lot with Roger Williams of Rhode Island, who preached a doctrine of love and toleration. Hooker's address differed little in content from the traditional God-centered approach taken by the Massachusetts Puritans, who had feuded with Hooker during his stay in that colony.
Hooker had, however, emphasized three important points in his discussion of the Biblical Commonwealth: 1) The civil authority rested with the people, 2) This authority should be written down, and documented, 3) The electoral franchise might be expanded. These ideas were important enough to advance the ideals of democracy beyond anything which had been put forth up to that time from Massachusetts or elsewhere.
Hooker's sermon compelled action by the General Court. Meetings of a committee of the General Court were held in secret throughout the remainder of 1638 and on January 14, 1639, a document, called the Fundamental Orders, was adopted, probably by the full legislative body, or perhaps by freemen in each town.
The Puritans who drafted the Fundamental Orders saw no distinction to be made between church and state. Their government was an outgrowth of their religious beliefs and was established to protect their religious convictions. Chief among these was, according to Fraser, the establishment of communities "that were cohesive and orderly as well as religiously pure...[They] exercised considerable vigilance over the 'good order' of families, carefully defining the rights and responsibilities of their members and quickly stepped in when transgressions occurred."
The government had no use for "non-believers". Fraser points out that "Quakers were banished as soon as they appeared...other non-conforming religious views were similarly discouraged, while undesirables and vagabonds were 'warned out' of Connecticut towns if they failed to meet community standards." (There were, however, no specific religious oaths or tests restricting participation in the government.)
The Orders carry out these principles. The preamble calls for an "orderly and decent government according to God" to maintain "the liberty and purity of the gospel of our Lord Jesus," to keep discipline in the churches, and to be guided by "laws, rules, orders, and decrees" in civil affairs. The main purpose of the Fundamental Orders was, of course, to formalize the confederation of the three River Towns. These towns were now in civil compact or covenant.
There were eleven Orders. The first Order called for the holding of two general courts or assemblies, one to be held in April, the other in September. In April, the Governor and six magistrates were elected by the freemen of the colony. Freemen status was not easily obtained-only those with substantial property interest were allowed to vote (later in the 1640's the figure was thirty pounds).
The Office of the Governor was a weak one. The Orders show that the maximum term of a governor was two years and he could not succeed himself. In fact for many years the popular Governor John Haynes rotated his office with his lieutenant governor, usually Edward Hopkins. According to the Fundamental Orders the major duty of the governor was to serve as moderator of the General Court. He could break ties, but could not disband the General Court or interfere with elections.
The magistrates, as in Massachusetts, were the colony's aristocracy; but, unlike Massachusetts, they were subject to more democratic control. They were nominated at the General Court six month's previous to their election by the freemen in April. They had no "negative" or veto over the deputies. The Office of the Magistrate was an amalgam, having not only legislative, but also executive and judicial power. No Fundamental Order or statute at this time barred the deputies from exercising judicial power, but traditionally they did not sit as judges. This was a task taken on in large measure by the magistrates.
Each town sent to the General Court four deputies, chosen by ballot in the towns. The Governor, magistrates and deputies meeting together constituted the General Court with the power to "make laws or repeal them, to grant levies [taxes], to admit freemen...and also...any other matter that concerns the good of the commonwealth." Both the magistrates and the deputies had to approve legislation by a majority vote for it to be in effect, although there was only one legislative body, not two bodies as developed later.
The freemen had the power to force the General Court to meet if the Court itself refused to convene after notice. The deputies had the authority to meet in caucus before any General Court to consult on public business. These provisions gave protection to the electorate from the arbitrariness which had been the norm for the English Parliamentary system. It must be remembered that the document was issued just as the first indications arose of a civil war in England between the English king and the people over the principles of free government.
One of the remarkable omissions of the Fundamental Orders was reference to the English crown or to Parliament or to the mother country. Simeon Baldwin, writing in 1894, called this a "daring spring into political independence" from men long accustomed to some self-created form of public organization.
The General Court, according to the Fundamental Orders, was "the Supreme Power of the Commonwealth." Baldwin continues: "[Connecticut]...grew...from small beginnings ...[It had a proud history of its own, before it was a state...[It] has been ruled for centuries by men of its own choice and laws of its own making..."
These Fundamental Orders have long been called the world's first written constitution. Of course, today we know that this is only partially correct. The Orders were really statutes, which could be, and were in fact, subject to periodic legislative amendment. They were not an organic document distributing power among various branches of government. But the Orders did, to quote Andrews, contain, the "germs of a great principle-the principle of self-government based on a limited measure of popular control." A significant result had been achieved based purely upon the principles of Congregationalism.
Whether a true constitution or not, the Fundamental Orders did work and Connecticut's early government was successful. The first meeting of the General Court under the Fundamental Orders took place on April 11, 1639 and John Haynes was elected governor. Haynes, an English aristocrat and former governor of Massachusetts, served alternately as Governor and Deputy Governor until 1655. Important legislation was enacted at this General Court-incorporating the towns and providing for the keeping of proper land records.
Over the next few years, the colony expanded outside the three River Towns to include Middletown, New London, Norwich and Farmington. In Fairfield County, Stratford, Fairfield and Norwalk were established. Also the Colony purchased for $50,000 (this figure is from 1935), the Warwick patentees' interests in 1644 from Col. George Fenwick. This figure was called a great burden on the colonial finances in several subsequent communications with English kings. In 1654, the Dutch holdings in Hartford were finally secured by the Colony as a result of settlement of disputes between England and Holland. New Haven, and its surrounding communities, all this time, made up a separate colony, with a separate government and code of laws. Soon we shall see what became of the New Haven settlement.
The Ludlow Code of Laws of 1650 is an important statute which is also part of the first "constitution" of Connecticut. Roger Ludlow, who helped draft the March Commission of 1636 and the Fundamental Orders, was asked in 1646 by the General Court "to take some pains in drawing forth a body of laws for the Government of this commonwealth, and present the same to the next General Court." This was seen by the General Court as involving the creation of a code of laws "grounded in precedent and authority and fitted to the necessities of the new civilization."
The Code was completed in 1650; it covers fifty pages of the printed Colonial Records of Connecticut and is divided into seventy-seven titles, arranged alphabetically. The Code commences with a declaration of rights, borrowed from Massachusetts Bay Body of Liberties:
It is therefore ordered by this court and authority thereof, that no man's life shall be taken away, no man's honor or good name shall be stained, no man's person shall be arrested, restrained, banished, dismembered, nor any way punished, no man shall be deprived of his wife or children, no man's goods or estate shall be taken away from him, nor any ways endangered, under color of law or countenance of authority, unless it be by virtue or equity of some express law of the country warranting the same, established by a General Court and sufficiently published, or, in case of the defect of a law in any particular case, by the word of God.
The roots of due process are clearly present in this passage.
The first entry was "Ability"-all persons twenty-one and older might make a will or convey land or be a plaintiff in a civil case, provided they were "of right understanding." "Arrest" included a provision restricting the English practice of imprisonment for debt. The capital punishment law was drawn from an earlier statute of 1642 and, as may be expected, relied heavily on the Puritan's interpretation of Mosaic law. The death penalty was appropriate not only for rape, treason and murder with malice, but also sodomy, and rebellious children who strike their parents.
Other provisions of the code illustrate the dangers of settlement in the wilderness, discussing the training and supplying of soldiers, killing wolves and watching for Indians.
Significantly the Code rejected the Medieval land law of England including the ancient doctrine of primogeniture.
"Our Lands and Heritages shall be free from all fines and licenses upon alienations, and from all harriots, wardships, liveries, primer seizins, year, day and waste, escheats and forfeitures upon the death of parents or ancestors, be they natural, unnatural, casual or judicial, and that forever."
The family was a chief concern for the Puritans. Marriage was entirely controlled by the civil authorities, not by the clergy. The announcement of marriage was to be published eight days before the wedding. Clergy did not even perform the ceremony until 1694.
Divorce (while omitted as a topic from the Code itself) was permitted in Connecticut when the circumstance required it. The Puritans recognized, as England did not, that at times the family was better without the continuation of the marital union. The law of the state, rather than the parties themselves, would determine when the break-up was appropriate. As may be expected of a society so concerned with order, illegitimacy was frowned upon, and the mother was subject to discipline.
Education was an important concern. A teacher was mandatory in communities with over 50 households. Schools were to be supported in communities of 100 households or larger, to give children basic skills and defeat "that old deluder, Satan."
There are many humane principles in the Code--honest pricing of corn, fair treatment of servants, kind treatment of animals. These and other provisions of the Code became an important part of Connecticut's law; specific references to the Ludlow Code might be found in the statutes as late as 1900.
Ludlow, the first attorney in Connecticut, had, according to Justice Haines, completed the "crowning achievement of his life." He settled in what is now Fairfield; but differences arose with leaders in Hartford and there were other sources of friction.
In 1654 Ludlow sold his possessions and returned permanently to England. He became close to Oliver Cromwell and served in various positions in Ireland. In 1674, when he was 74, he was reported living in Dublin. Strangely, neither the date nor place of his death is known.
There is no existing portrait of the father of Connecticut's legal system. He is, however, represented in the mural of the drawing up of the Fundamental Orders by Albert Herter which hangs above the bench in the Supreme Court courtroom. (The artist used as a model, descendents of the Connecticut founders.) The standing figure to the right represents Hooker, and the man seated at the table with the candlelight on his face is Ludlow.
Winthrop had been governor since 1657. (The restriction in the Fundamental Orders limiting the term of the governor had been repealed.) Fraser describes him as a "classic 'Renaissance Man' who successfully pursued simultaneous careers in politics, business and medicine throughout much of his life." We have previously seen that he was responsible as an agent of the Warwick patentees for the compromise that led to the March Commission of 1636. He also had helped found the town of New London in 1647. He was one of the first members of the scientific body, the Royal Society, in England to which he was constantly sending mineral specimens and before which he once exhibited a windmill he had invented.
Winthrop was given detailed instructions by the General Court and had a draft of the charter prepared for him before departing for England by a committee of eight appointed to assist him. An "address" to the king "permeated with a fawning servility" to the mother country was drawn up, as were letters to several Lords who were friends of the Connecticut Colony.
On July 23, 1661, Winthrop sailed from New Amsterdam in the Dutch ship DeTrouw. He set to work on his arrival in England, contacting Lord Saye and Sele and the Earl of Manchester, members of the Privy Council, who agreed to support the proposed charter. Sir Geoffrey Palmer, the attorney general, approved a bill for incorporation of the charter. The bill was given the appropriate seals and enrolled in the clerk's office on April 23, 1662. The Colony was given the news by a letter received in May, 1662. The actual document was taken up and adopted in the General Court of October 9, 1662. Of course legends have grown up about something as significant as the charter. One such tradition pictures Winthrop pleading the cause of the colony before the king. The good scenery of the colony and the devotion of the people are painted for the ruler. Governor Roger Wolcott, writing in verse some years later, gives the king's gracious reply:
Another story is that John Winthrop owned a ring, once a gift to a Winthrop family member from Charles I, and this was presented to Charles II. This action touched the heart of Charles II, the grieving son of the beheaded king, and he acted favorably toward the request of the courtly ambassador.
Be it so then, and we ourself decree, Connecticut shall be a Colony; Enfranchised with such ample liberties As those, their friends, shall best for them devise. And farther know our royal pleasure thus And so it is determined by us: Chief in the patent, Winthrop, thou shalt stand, And valiant Mason place at thy next hand, And for the chief senators and patentees, Take men of wealth and known abilities: Men of estates and men of influence, Friends to their country, and to US, their prince.
This document, incorporating "the Governor and company of the English colony of Connecticut in New England in America", and supplanting the Fundamental Orders, became the first declaration that Connecticut had an official government. Taking the form of a trading company charter, nineteen persons were named patentees-including Winthrop, the current governor and John Mason, the current deputy governor.
In fact the structure of government was little different from the Fundamental Orders. There was to be a General Court and the offices of governor and deputy. The magistrates were now called "assistants" and were to be twelve in number. Each town was to send two deputies to the general court. The power was given to establish judicial tribunals to assist the general court.
The charter gave the colonials all "liberties and immunities" of the realm of England. The General Court could enact all necessary laws, provided they were not contrary to the laws of England. The corporation could choose a common seal, admit freemen, appoint offices, impose fines, and raise a militia for the common defense. One change from the Fundamental Orders to the advantage of the governor made him the sole official who could call the general court into session; neither the freemen nor the assistants could compel the court to meet. The colony, like Rhode Island, had received a liberal charter from a Stuart King-a ruling line not usually enamored of the Puritans. Historians have speculated on why Winthrop was so successful. One answer was that this was a distant land. There were little valuable resources to plunder and the population was small. The real possibilities of this new land were hardly conceived. Also, Charles II might just have been glad to have the Puritans out of England on the 16th century's equivalent of the moon.
The greatest "shocker" of the charter might also explain one reason why it was approved by the king-the geographical limits of Connecticut were bounded on the east by Narragansett Bay, on the North by Massachusetts, and by the "South Sea on the West." New Haven had ceased to exist as a separate colony and the Connecticut colony could demand its territory in the name of the king. It is thought that the king was punishing New Haven for harboring three "regicides"-judges who sentenced Charles I to death. Further Charles II's advisors were indirectly punishing Massachusetts by increasing the land area of Connecticut. An open question exists to the extent the Connecticut Colony itself proposed to the king that the Charter eliminate New Haven. The proposed Charter drawn in Hartford gives some indication that Connecticut desired to increase its borders at the expense of its sister colony.
New Haven reacted as might be expected and tried to exist as a separate entity-but to no avail. Its leaders made a series of entreaties to the Connecticut General Court, but these fell on deaf ears. Meanwhile, Charles II had given part to the same territorial grant including New Haven to his brother, the Duke of York. New Haven decided that it would prefer to align itself with the Connecticut Colony than become part of the Duke's domain-at least Connecticut's people were Puritans. By May, 1665, New Haven's deputies were in the General Court. Its law code was not totally ignored-for example its provisions on divorce were retained as a statute of the Connecticut colony.
In the new code of 1672, the towns were formally recognized and given specific duties supporting the poor, repairing roads and bridges, and defending the commonwealth. The number of towns increased rapidly. By the early 1700's there were 46 towns. In 1666, county government had its beginnings with the designation by the General Court of Hartford, New Haven, New London and Fairfield counties.
Of course this was still not true representative government as we know it today. Fraser writes:
The franchise was limited to those owning land and property worth at lease 50 shillings. Voters were to be men of "sober conversation," "of quiet and peaceable behavior and civil conversation." Their credentials were carefully reviewed by the town's freemen and selectmen. Excluded from the larger political process by these narrow criteria were all women, apprentices and indentured servants, slaves, blacks and Indians and, indeed, a sizable percentage of the adult white male population, although political participation in town politics was considerably more open. In 1669 there were but 1,789 qualified voters in an adult white male population of over 3,000. Dominating this narrow political structure was a small Puritan elite who completely controlled the colony's political affairs, largely, it should be added, with the acquiescence of the "lesser sort." In the rigidly hierarchical society of 17th-century Connecticut, it was axiomatic that the "better sort" should lead.
Two uniquely Connecticut election procedures developed. Voting took place in the towns and the ballots were taken to Hartford to be counted. There were 20 nominees for Assistant, of which 12 were elected. It became the tradition to cast blank ballots for certain nominees as a protest vote. The charter also allowed the General Court to fill vacancies where the public had failed to elect enough officials. Baldwin, in 1888, mentions that Connecticut had in earlier days a unique proxy voting system, unknown in England.
Connecticut was at peace in 1675, not affected directly by the Indian King Philip's war which raged on in the neighboring colonies, although rumors abounded of "mischievous" Indian raiding parties and of an attack on Simsbury. But at this time trouble was brewing; Edmund Andros was appointed governor of New York. He demanded that Connecticut surrender to his jurisdiction under a patent obtained from King Charles. Andros landed in Saybrook but the Connecticut Militia under Captain Thomas Bull forbade the reading of the patent. Andros then returned to New York for the time being. In 1685 trouble began again for Connecticut. Andros and another well-connected official, Edward Randolph, began to serve writs of "quo warranto" on the colony charging misuse of power. William Whiting, the colony's agent in London, repeatedly told the king (now James II) that the colony would undergo serious hardship if its privileges were taken away.
On December 28, 1686, Andros demanded in a writ served on Governor Treat that the charter be surrendered to him. The General Court issued a proclamation of opposition and tried to stall. Andros grew tired of asking for compliance, and on October 31, 1687, he appeared in Hartford with a band of soldiers.
Tradition has it that a meeting then took place between Andros and the leaders of the colony; at the meeting the charter was on a table at the meetinghouse; it was a gloomy autumn day and candles were lit; the candles were suddenly extinguished. The charter was snatched out of the room and hid by Joseph Wadsworth in an oak tree on the Wyllys estate. This "Charter Oak" became a famous historic landmark and civil relic; and when it fell in 1856 its wood was made into a variety of objects-including a chair now found in our State Senate.
The historical record is less romantic. Andros appeared before the leaders of the colony and formally annexed Connecticut to the other colonies as part of the "Dominion of New England." The separate government of Connecticut had come to an end and the General Court declared itself dissolved. In one respect Andros did not succeed-he never secured the charter itself.
For the next eighteen months the colony experienced an unexpectedly hard regime. The seat of government was now Boston, the General Court was abolished, freedom of the press was attacked, and taxes were imposed arbitrarily. In Congregational Connecticut, a law was passed forbidding citizens to pay taxes to support the churches. The traditional view is that this was dictatorship, although the chroniclers may have overstated its severity for political reasons.
The burden of Andros' government was a good deal lighter in Connecticut than in Massachusetts. Instead of ruling directly, he worked through the colony's offices, primarily Secretary Allyn, whose persuasiveness with both Andros and Randolph blunted several of the sharper edges of Dominion power, leaving considerable authority in Connecticut hands, where it had resided for some time.
Luckily the "Glorious Revolution" occurred in November, 1688, with James II fleeing London and the arrival of William and Mary as king and queen. Andros was overthrown.
The Colony broke into three factions: One group wanted to continue with ties to England under a royal government; another wanted to draft a new charter and remove from office those leaders who had served in the Andros government (this would have included Governor Treat who was in power when Andros took over and served as a representative in the Dominion); the third wanted to return entirely to the status as it existed at the time of the seizure of power. The third view was adopted.
In May, 1689, the re-established General Court declared that "all the laws of this colony formerly made, according to Charter, and Courts constituted in this colony for administration of justice as they were before the late interruption, shall be of full force and virtue for the future..." The old government, including its leaders, in place at the time of the Andros usurpation, was restored as though nothing had happened for eighteen months. No permanent effects on the government occurred from the episode.
The colony lost no time in petitioning William and Mary to obtain their approval for the return to the former government. In the meanwhile, the governor of New York, Benjamin Fletcher, claimed military authority over Connecticut's military. Of course, this claim was in violation of the Charter.
Again, as a response to Fletcher, the colony sent an address to England to settle the status of the Charter government. The man appointed to present the petition to the Crown was John Winthrop, Jr.'s son, Major Fitz John Winthrop.
On October 26, 1693, Governor Fletcher appeared in Hartford and, as with Andros, tried to compel submission. He did not succeed, as the General Court claimed that the Charter was still in place and there was no indication from London otherwise. Again a traditional story developed that as Fletcher attempted to read his commission, the commander of the Connecticut troops, Captain Wadsworth, ordered the drummers to drown out his words. Fletcher was said to have retreated declaring that, "I never saw magistracy so prostituted as here; the laws of England have no force in this colony; they set up for a free state."
Fitz John Winthrop was having success in England. The Attorney General and Solicitor General reported to the king that the Charter was still in effect; it had only been surrendered against the will of the colony. This report was ratified by the king on April 19, 1694. This was the final serious challenge to Connecticut's government or its precious charter.
One last alteration of government occurred in 1698 when the General Court voted to divide into two bodies. The lower house was to be called the house of deputies or representatives, and the upper was to consist of the assistants. The General Court's name was formally changed to the General Assembly, although most people still referred to it as the "General Court" for many years. At first the General Assembly met only in Hartford, but after 1701 it met alternately in Hartford and New Haven. This division into two houses led to a constitutional question-did one body have a negative vote over the other? In 1723 when Nathan Gold, the incumbent lieutenant governor, died in office, the upper and lower houses split on who was to succeed him. After each house passed separate bills, the upper house eventually backed down and followed the deputies. In 1724, a similar dispute arose; a compromise act was finally passed to choose successor to a governor who had died in office. This "give and take" activity is typical of a more modern state, which Connecticut was fast becoming.
The first record of a trial actually predates the Fundamental Orders. It was a jury trial held in Watertown (Wethersfield) in 1636 and involved a claim to land. Again pre-dating the Fundamental Orders, the General Court of 1638 ordered that a "particular court" be convened in Hartford for the trial of two persons accused of misdemeanors. It is likely that the Particular Court on this occasion consisted of some or all of the magistrates of the colony.
This informal use of the magistrates to form a "particular court" continued until 1647. No mention is made of this court in the Fundamental Orders. Loomis and Calhoun describe the Particular Court before 1647 as follows:
Its usual place of meeting was Hartford.
There being no building devoted to the public use as a courthouse, it is probable that its gatherings, with the exception of such as were assembled in the meetinghouse in cases of importance, were held at the houses of the magistrates as convenience allowed. The practice in this primitive tribunal must have been simplicity itself. Lawyers were unknown, rules of evidence hardly thought of, the magistrates conducted almost the entire examination of witnesses, arguments were infrequent, and the judgment based on conscience rather than on the precedent of reported cases.
In 1647, a debate in the General Court took place about the Particular Court. Some members of the General Court argued that the Particular Court was equivalent to the governor, or deputy governor and a majority of the magistrates convening to decide on an issue. But at the conclusion of debate it was decided that the Particular Court would be the governor or deputy governor and two magistrates. In the absence of the governor, a third magistrate would sit and one of the group would be elected a moderator.
This more formal arrangement did not improve the status of attorneys in the colony. Hooker and the other Puritan leaders had little use for lawyers. As Hooker said:
If a Man will follow every Wrangling Lawyer at every impertinent quibble or outleap, he must never look for an end of lawing. And it is the fashion of many Attorneys rather to breed quarrels, than to kill them in the Conception.
Despite the adversion to tricky advocates, the Particular Court functioned as a purely judicial body under the direction of the non-lawyer magistrates. The Particular Court took both civil and criminal cases. As Jones states, the scope of cases extended to "capital crimes or a minor criminal cause, damages incurred by wandering cattle or pigs, a question of a title to a parcel of land, insolvency slander or any other action over 40 shillings."
A jury trial was required in all cases, both civil and criminal involving 40 shillings or more. The losing side in the case had to pay 6 pence to each juror as a fee. The jury determined the matter by a two-thirds majority. If the jury could not agree, the matter was returned to the magistrate for a decision.
In addition to the two statewide courts (the General Court and the Particular Court) there were also local courts. After 1640, it was common for the General Court to assign a magistrate to hold a hearing in Fairfield along with Roger Ludlow. In 1649, John Winthrop, Jr. heard small cases without a jury while sitting in New London.
Then there were Town Courts, consisting of "principal men" chosen by the electors at the annual town meeting. These lesser Courts could appeal decisions to the Particular Court or the General Court.
The usual sentence imposed by the courts was a fine. Sometimes a fine was imposed with a Biblical basis, requiring payment of double or triple of the value of the injury done. Thus, a thief of a necklace might have to pay back several times its value. Other punishments included sitting in stocks, whippings and in some cases confinement in the prison on the grounds of the Hartford meetinghouse.
After the commencement of the charter government and the completion of the union with New Haven, there were certain changes made in the court system, but most of these changes were rearrangements, more than any new approach. The General Court (Assembly) retained an appellate function and also acted as a trial court, although through the Eighteenth Century more matters were transferred out to the lower courts.
The Particular Court, under the Fundamental Orders government, was composed largely of magistrates. Under the Charter these magistrates were called "Assistants" and thus the Particular Court was now called the Court of Assistants. Like its predecessor, it consisted of the governor or deputy governor as presiding magistrate and six of the assistants.
Since the Assistants after 1698 constituted the upper house of the General Assembly, the Court of Assistants became identified with the upper house. The Court of Assistants was to meet one week before the semi-annual meetings of the General Assembly.
The business of the Court of Assistants was similar to the Particular Court at first. The General Court added to its jurisdiction the granting of divorce, copying the grounds for divorce from the Laws of New Haven. In 1681, it was further vested with admiralty jurisdiction. It was this court which became the Superior Court after 1711.
Gradually the General Assembly established other courts to handle some of the business of the Court of Assistants. One court, the County Court, in the eighteenth century was composed of a judge and usually three freemen commissioned by the General Assembly. In the eighteenth century the County Court had original jurisdiction over most judicial matters; by the end of the eighteenth century the Court of Assistants (Superior Court) had reacquired most of the powers it had lost to the County Court.
Also retained by the General Assembly were the town courts to handle matters that did not exceed 40 shillings. An appeal procedure was established to the County Court, then to the Court of Assistants, and then to the General Court (General Assembly) as a Supreme Court. The Connecticut Supreme Court, consisting of the full upper house, was not established until 1784. Where the General Court had originally been the sole body to hear judicial matters in 1636, by the 1700's, separate institutions to hear cases initially had begun to develop in the colony. Only after the constitutional reforms of the nineteenth century was the judiciary made a completely separate branch of government.
The only written "constitution" was the Charter and laws passed in furtherance thereof. The goodwill and acceptance of the system by the people was the true constitution; they were willing to give free reign to the legislative branch and only in extraordinary circumstances would the General Assembly's power be questioned.
Having described the government, we can now turn our attention to three legal happenings in Connecticut in the eighteenth century which tested the limits of the "constitution." One illustrates the degree to which Connecticut was, in fact, a colony, another the way in which a serious executive branch scandal was handled, and the last, the outcome to a border dispute with Pennsylvania, also a governmental crisis.
While Connecticut's eighteenth century courts had a system of appeals, technically it was still possible to go to England as well for a final appeal. The appeal was not to the royal courts, however, but to a special committee of the Privy Council. Friedman finds that this committee had little use for the common law. It cared only for "politics and policy". Its decisions were few and poorly considered and reported.
But however incompetent the body and little- used the procedure, the existence of the Privy Council Committee does indicate that there were outer boundaries to Connecticut's freedom. And Connecticut has one of the few cases before the Committee that anyone remembers today-Winthrop v. Lechmere.
Wait Winthrop died in 1717. His two children and heirs-John Winthrop (a nephew of the former Connecticut governor) and his younger sister Ann Lechmere-had no problem dividing Wait's personal property. It was the real property which turned brother against sister. Until 1723, the parties attempted to solve the dispute with an amicable division.
In 1723, compromise failed. Ann's husband asked the New London Probate Court to allow him permission to sell Connecticut property and take a portion of the fund created for his wife. The probate court ordered Winthrop to list all real property in the estate.
Winthrop refused, claiming that the law of England (primogeniture) gave the realty to the eldest son. In Connecticut and most other colonies at the time the law was different-each child other than the eldest received a single share, while the eldest received a double share. This practice may be traced to a Massachusetts statute of 1627.
After appeals to the Superior Court and the General Assembly, Winthrop came out on the losing end when the Connecticut law held applicable. The inventory was ordered supplied, and Lechmere awarded the right to sell certain tracts which had been Wait Winthrop's.
In late 1726, Winthrop decided to travel to England to take his case before the Privy Council Committee. A friend urged him not to go telling him:
I never had a sister, but if I had I should have looked upon her next to my wife and should have been willing that she have enjoyed part of my father's estate with me.
But to Winthrop, there had been a great injury done to him in the Connecticut courts. He was upset with the bumbling legal conduct of his own attorneys; he was upset with the Superior Court for withdrawing an appeal without his permission and while he was ill; and he was furious at the General Assembly for holding him in contempt, imprisoning him for three days and fining him 20 pounds when he declared at a heated hearing at the General Assembly that he intended to go to England for relief. He would fight doggedly for the principle that primogeniture prevailed.
Winthrop went to England and never returned to his family again. He obtained permission for an appeal and by May, 1727, had convinced the Committee to hold an expedited hearing, even before Connecticut's agents had time to appear from the Colony.
In his petition Winthrop not only attacked the intestate law, but the Connecticut Charter as well on the ground of abuse of power-The idea that a daughter share real property with an only son was against both reason and law. On December 20, 1727, Winthrop had the English attorney general and the solicitor general argue on his behalf. Lechmere's attorney in contrast was not up to the task. He forgot to argue that the law in question had been adopted throughout the colonies and was of long existence.
At the conclusion of the hearing, the law was held void and all unfavorable orders were withdrawn. Winthrop had won sole right to the real property. The Privy Council confirmed the committee on February 15, 1728.
Purchasers of the tracts sold by Lechmere were ordered off their lands by Winthrop's wife and Winthrop's attorney obtained a court order in Connecticut enforcing the Privy Council's decision.
Connecticut's government in Hartford did not even know of the Winthrop petition of March, 1727 in England until September, 1727; it immediately sent out a reply. But this reply did not reach the Committee in time. The next news was a blow to the colony-it heard informally in May, 1728, that the petition had been granted. For the next seventeen years, the colony attempted to change this disastrous result.
This decision affected Connecticut's and several other colonies' law of intestacy. In Connecticut, the settlement of estates was frozen. There was fear that all titles involving realty would be affected, and there were many landowners in this agrarian society. Creditors were also concerned about the status of their attachments of real property.
Governor Talcott sent agents to London in May, 1728, to do what could be done to reverse the judgment of the Privy Council. Several avenues were tried. Parliament was approached but various European events kept the remedying of the decision as a low priority. The English Board of Trade considered the matter in 1730 and ordered that the holding in Winthrop not be extended to any prior probate matter. The Board refused to change the current or future English law, however, unless Connecticut agreed to give up its charter and allow for more English control. This offer was refused, of course. Not only would Connecticut not surrender its charter, it also took the extreme view that Connecticut law took precedence over English law unless specific English statutes provided otherwise. Connecticut, even in the face of law to the contrary, argued for its almost complete independence from British rule.
Then a series of cases arose in Massachusetts, Rhode Island and finally Connecticut which raised the same issue as Winthrop, but seemed to hold the colonial laws valid. In 1745 in Clark v. Tousey, the Committee of the Privy Council refused an appeal because it was late without reaching the merits. Connecticut seized upon this holding and decided to use it to claim that the statute held invalid in Winthrop was now valid. No further challenge was made to the law before 1776 and the colonial statute was, through this questionable method, saved from invalidity.
This was less a court "case" than an "affair" which threatened Connecticut's government and led to a change in administration. The basic government system was, however, able to survive. It began with a plot against a Spanish ship, "The St. Joseph and St. Helena" in distress near New London harbor. The ship contained gold and silver, with a value in the millions, and merchandise, such as indigo, valued at 400,000 Spanish dollars. While a captain from New London was willing to help save the ship, he was also interested in the salvage reward. The ship arrived in New London harbor seriously damaged, perhaps intentionally made worse by those "helping" her. People who had never seen a foreign vessel loaded with treasure, flocked to see this ship.
The Connecticut governor, Roger Wolcott, heard about this event and appointed an Assistant from New London, Gurdon Saltonstall, to protect the cargo. There was, also, a Spaniard on the ship named Joseph Miguel de San Juan who was in charge of the cargo. He came under the influence of a sharp Spanish immigrant translator residing in New York and two confidence men--Cuyler and Lane-who claimed to be helping San Juan do his job, but were actually after the cargo.
Fights arose over the rights to the cargo. San Juan did not want Saltonstall to hold it for safekeeping; the New York admiralty judge appointed by England ruled the "rescuing" captain was to have a share; another "helper" was promised a sum by the New London customs officials. Finally San Juan with Cuyler and Lane's help brought a legal action against the state (replevin), demanding the goods.
Eventually San Juan was successful in paying off all the charges and received permission to load a new ship, "The Nebuchadnezzer," to take the remaining cargo to Spain. For some unknown reason Governor Wolcott designated Lane, not San Juan, as the agent to load the new ship. Lane promptly made off with four boxes of the silver and was never seen again. Moreover, the gold had been stolen during all this delay, probably by "guards" at a New London warehouse.
In January, 1754, a false story began to circulate that Governor Wolcott and Lane had conspired to rob San Juan. Were this true, Connecticut might be liable for one million Spanish dollars in damages. The government of England, trying to impress Spain, on two occasions sent warships to New London to investigate these charges.
As a result of this upheaval, Wolcott was seen as a thief or at best incompetent, and lost the election of April, 1754, and Saltonstall lost his seat in the upper house. This was the first time since the granting of the charter in 1662 that a governor was turned out of office. It was some years before Wolcott and Saltonstall were able to restore their reputations and prove the rumors false.
The case slowly faded from view and no damages were paid out by the colony. Indeed in the delay the price of indigo had risen and the merchandise had become much more valuable.
The case put a strain on relations between England and Connecticut, between different branches of the Connecticut central government, and between the central government and one of its towns. The government did survive under the new governor Thomas Fitch, who led Connecticut through the French and Indian War and the Stamp Act crisis.
This controversy again put pressure on the constitutional framework of the government in Connecticut. With its charter setting its Western boundary as the Pacific Ocean, Connecticut began to look in the 1750's to expand into an area also claimed by Pennsylvania. A group of land speculators in Windham organized the Susquehannah Company in 1753 and through a variety of means, some not very ethical, were able to acquire rights in and around what is now Wilkes-Barre.
A series of struggles for the land, including armed combat, next took place between the Connecticut settlers, the Delaware Indian tribe and Pennsylvania residents. Even so, land settlement continued and by 1774 there were 17 townships established in the region.
The Connecticut colony was split over support for this settlement venture. It became a divisive election issue. The Upper House and Governor Trumbull supported the settlement while the Lower House did not. Finally in 1773, the Houses reached agreement and the new territory was incorporated as the Town of Westmoreland; at first the town was considered part of Litchfield County, then it became its own county.
Connecticut's conservatives reacted violently to the success of the Susquehannah Company. They feared that England would find the establishment of Westmoreland to be a great provocation, justifying the revoking of Connecticut's charter. The conservatives had most success in the Western part of the State, especially in Middlesex, New Haven and Fairfield Counties. Their followers were described as "in a flame." Every issue of the day was cast in terms of one's position on Susquehannah. One wag said more disagreement occurred between people in Connecticut than occurred at the site in Pennsylvania.
Capitalizing on the tension, the conservatives called for a convention to be held in Middletown. Although the pro-Susquehannah forces tried to stop the convention, it went forward as scheduled on March 30, 1774. Here there was debate about establishing a government opposed to the Pennsylvania land expansion. Some delegates also put forth the names of candidates for governor and assistant that would take their position on the issue. This nominating procedure was not in keeping with nominations under the Charter and was attacked by the pro-Susquehannah party as illegal.
In spite of the charge of illegality, the voters in the fall elections were given the opportunity to choose between the slate of the expansionists or the slate of the conservatives. The freemen clearly spoke in rejecting the conservative message -- Governor Trumbull was re-elected by a vast majority.
The matter was still controversial. Before the Revolution, the king would not resolve the issue of the land dispute and during the Revolution there was a massacre of half the settlers by Indians, British troops and American loyalists. After the Revolution, Pennsylvania and Connecticut appealed the case to the federal government-the Confederation or "old" Congress. Holding court at Trenton, NJ, the court ruled in favor of Pennsylvania. (This was the only federal court matter ever heard under the Articles of Confederation.)
Connecticut, with William Samuel Johnson and Roger Sherman serving as negotiators, then agreed to let the land pass to Pennsylvania with the understanding that Connecticut was to receive land in the "Western Reserve", now known as Ohio. The matter was an example of the bitter factionalism which plagued the colony in the years before the Revolutionary War.
Hooker's Bible commonwealth had virtually dissolved by the time of the American Revolution. It was not just the tensions over land distribution, as seen in the Susquehannah episode. There was also the growth of economic individualism which undermined the group-value approach of the Puritans. Money-making took center stage-the day of the "peaceable kingdom" was over.
And the unity of the Congregational Church was split by the "Great Awakening" of the 1740's. This revival campaign split the church between more conservative "Old lights" and the more emotional "New Lights." New churches-Baptist and Separatist-were gaining membership. These religious divisions also spilled over into the political campaigns as each faction tried to dominate the General Assembly.
Connecticut, to quote Bushman, changed from "Puritan to Yankee." The state was, in Fraser's words, "more individualistic, religiously diverse and a far more economically aggressive society." And yet the basic government, not too different from the March Commission of 1636 and virtually identical to the Deputy-Magistrate system of the Fundamental Orders, remained in place. Even as political tensions increased and revolution came, the government structure held together. This government worked.
It had close to 150 years experience with little interference from Great Britain in doing what the Declaration of Independence found the trademark of a free country-it did and would continue to "levy war, conclude peace, contract alliances, establish commerce and...all other acts and things which independent States may of right do."
Henry S. Cohn