Preserving the Past, Informing the Future
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Connecticut is called The Constitution State, presumably because the Fundamental Orders of 1638-39 is the first document written by a representative body setting up a framework for government.
Connecticut can just as easily be called The Unconstitution State. In 1776 the 13 colonies declared their independence from England. Thomas Jefferson promptly drafted a constitution for Virginia and within 10 years New Hampshire, Massachusetts, New York, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina and Georgia had done likewise. And what did Connecticut do? Basically nothing. Certainly nothing that would affect the day-to-day political lives of its citizens. The General Assembly did delete the references to the monarchy from the Charter of 1662, but otherwise it went about its business as before. For 42 years, until 1818, Connecticut arguably did not have any constitution at all.
Why "arguably"? Because "constitution" is a word of some ambiguity. Connecticut certainly did have a government from 1776 to 1818, but it was essentially the same one it had had since the 1630's. A constitution today is generally thought of as a document setting up a framework of government that is not subject to alteration by the normal legislative and executive process. Until 1818, the General Assembly was the supreme authority in the state. It was the General Assembly which had altered the Charter of 1662. Even so, Connecticut had an unwritten constitution before 1818, just as England has today. And what is that? It is the practice and customs of a society that are generally agreed upon as immutable, or at least as not suddenly mutable by a mere General Assembly.
An unwritten constitution that the whole society believes in is likely to be much stronger than a written one that a society does not believe in. England has lasted a millennium with an unwritten constitution, whereas a majority of the countries today with a written one have seen it ignored by military strongmen and others.
Where is evidence of Connecticut's unwritten constitution? Many people assume that Chief Justice Marshall of the United States Supreme Court invented the doctrine that judges can declare statutes unconstitutional in 1803 in Marbury v. Madison. Yet in 1785, in a state with a tradition of legislative supremacy, the Supreme Court of Errors (the predecessor of the Supreme Court) wrote as follows in the Symsbury Case:
The act of the general assembly [granting land to proprietors of Hartford and Windsor in 1686]...could not legally operate to curtail the land before granted to the proprietors of the town of Symsbury [in 1670], without their consenting; and the grant to Symsbury being prior to the grant to the town of Hartford and Windsor,...we are of opinion [that Symsbury wins the lawsuit].
Here we have possibly the earliest reported case in the United States holding that a legislature cannot legally take property away from one person and give it to another. But how could the General Assembly do something illegal unless there was a higher legal authority? That higher legal authority, assumed to exist by the judges, must have been the unwritten constitution.
One of the most famous judges in Connecticut history, Zephaniah Swift, wrote in 1795:
Some visionary theorists have pretended that we have no constitution, because it has not been reduced to writing. It is, therefore, necessary to trace the constitution of our government to its origin, for the purpose of showing its existence, that it has been accepted and approved of by the people, and is well known and precisely bounded.
To Swift, as to most citizens at that time, a constitution exists if there is general agreement among the citizens as to how a government shall operate.
Another reason Connecticut could be said to have had a constitution before 1818 is the existence of the Fundamental Orders of 1638-39. Jesse Root, one of the most illustrious judges of the 1790s, considered the Fundamental Orders to be Connecticut's real constitution. Yet another reason Connecticut could be said to have had a constitution in 1818 is the existence of the Charter of 1662. It is somewhat ironic for a document granted by an English monarch to be considered a constitution of a state that has declared independence from the monarchy. But that is a mere surface irony. The Charter was not written by Charles II or his advisors; it was mostly written by Governor Winthrop and other Connecticut leaders in general conformity to the Fundamental Orders and presented to Charles II to confirm the legality of Connecticut's existing government. The Charter became in practice the emancipation of Connecticut from any significant English rule at the colony level. Except for a brief period in the late 1680s which spawned the Charter Oak incident, England paid virtually no attention to Connecticut. There were no royal governors; there were no royal judges. Unlike every other colony except Rhode Island, all Connecticut's rulers were chosen by Connecticut's citizens.
So when Connecticut declared independence in 1776, it had no need to tar and feather the Governor and his advisors and run them out of the state. Connecticut's Governor Trumbull helped to instigate the Revolution, and indeed he was the only colonial governor to support the Revolution. Thus the Charter of 1662 was generally perceived as a document of freedom rather than oppression. Since the colony had gotten along perfectly well under it for 114 years, why change anything in 1776? As the General Assembly declared in 1776:
Be it enacted...That the ancient form of civil government contained in the Charter from Charles the II, King of England, and adopted by the people of this state, shall be and remain the civil constitution of this state, under the sole authority of the people hereof, independent of any king or prince whatever.
So using the word "revolution" to characterize the events of 1776 in Connecticut is in one sense an overstatement, for the Charter of Charles II may well be thought of as Connecticut's Constitution until 1818.
To the question "Did Connecticut have a constitution from 1776 to 1818? There are therefore three correct answers: "yes, "no" and "maybe."
In the century before 1818, Connecticut had a tradition of no seriously contested elections. While the Governor was elected annually, in practice the Governor had the job for life (only three governors were turned out of office in the entire 18th Century). On every occasion from 1741 to 1818, when the Governor left office the Lieutenant Governor was elected in his place. Three generations of the Wyllys family were the sole occupants of the office of Secretary of the State from 1712 to 1810 and Thomas Day had the job from 1810 to 1832.
The General Assembly consisted of two houses, the Council and the Assembly. The Assembly consisted of up to 200 members, with each town having one or two representatives. Towns often reelected their representatives for two or three decades, although there was considerable turnover in other towns. However, the Byzantine system of electing the twelve Assistants, who with Governor and the Lieutenant Governor constituted the Council, insured the continuation of incumbent Assistants in office.
The election of Assistants went approximately as follows: At the Freemen's Meetings immediately following the September Town Meetings, the voters wrote the name of 20 men to be nominated for Assistant. The votes were tallied and the 20 names with the most votes were determined. At the following April Town Meetings, the list was submitted to the voters for election, but the twelve incumbents were listed first, even if other nominees got more votes. Each voter was given twelve pieces of paper, and then the first incumbent on the list was called off. Each voter either handed in one of the pieces or did not do so. As a practical matter, anyone who still had a piece of paper after the first twelve names were called off was considered a troublemaker. As might be expected, an Assistant generally kept his job until he resigned or was promoted. From 1783 to 1801 it appears that only one Assistant was turned out of office
The result was an entrenched conservative ruling class in Connecticut not to be found elsewhere in the United States. Until 1796 the Federalists had virtually no organized opposition. In 1801, Republican (pro-Jefferson, not to be confused with the present-day Republican party) candidates first appeared on the ballot but the Republican candidates for Governor and Lieutenant Governor received only 10 and 20% of the vote respectively, and only 33 out of 200 seats in the Assembly. But even this anemic vote produced a backlash from Federalists determined to ensure their long-term survival. Before 1801, the nominations for Assistants were made secretly and in writing, but in 1801 the law was changed to require nominations to be made orally.
In short, if the Republicans were going to dislodge the Federalists, an alternative way to do so was to advocate a new constitution. In election campaigns throughout the first decade of the nineteenth century, the Republicans promoted a new constitution and the Federalists opposed it. The highlight was 1804, when Abraham Bishop, an ardent Republican, demanded a constitution to separate the three branches of government and to define voting qualifications. David Daggett, an ardent Federalist, responded in a paper entitled "Count the Cost." He dwelt at length on what a wonderful state Connecticut was and how the government would fall before the violence of party, before office-seeking demagogues, the dethroners of religion and morals. Daggett was not one for understatement. Several justices of the peace joined the campaign for a constitution and were removed from office for their position.
While the Federalists won the 1804 elections, the Republicans eventually succeeded, politically and constitutionally, because they were on the winning side of three issues: religious freedom, separation of powers and expanded suffrage.
The Congregational Church was the established church in Connecticut before 1818. Throughout the eighteenth century all residents of each town were required to attend Sunday services and to pay taxes to support the local Congregational Church, unless a certificate was signed by an officer of a dissenting church (such as a Baptist, Episcopal, or Quaker) stating that a certain resident regularly attended and supported that church. In May 1791, a statute was passed requiring the certificates to be signed by two civil officers or a justice of the peace rather than by the officer of the dissenting church. Since the civil officers were Congregationalists, the effect of this new law was to harass the dissenters in their attempts to avoid supporting the established church. This caused a great uproar, and five months later the law was repealed and a new law was passed allowing the dissenter himself to sign the certificate but requiring him to file it with the established church. This caused a new uproar, for the dissenting churches had no way of determining who was supposed to support them except by complaining to the established churches. Nevertheless the certificate law was not changed and continued to outrage dissenters as they picked up supporters in the early nineteenth century.
Until 1814, the Episcopalians, wealthier and more influential than the other dissenters, were not particularly upset with the existing order. About 10% of the state was Episcopalian, and the Federalist majority was generally solicitous of their needs. For example, the laws were amended in the 1790s to accommodate Episcopal fasts and feasts, a problem since Episcopal fast days occasionally occurred on Congregational feast days, and vice versa.
From 1804 to 1812, the Episcopalians unsuccessfully attempted to convince the General Assembly to charter Cheshire Academy as an Episcopal college; these rebuffs did not convince the Episcopalians to desert the Federalist cause, but in 1814 the General Assembly completely alienated the Episcopalians by the manner in which a new bank was chartered. The new bank, The Phoenix Bank of Hartford, was charted and $60,000 paid to the state. Since Episcopalians were involved in the new bank, half of the payment to the state was supposed to be appropriated to the Episcopal church. What actually happened was that the General Assembly appropriated $20,000 to Yale College (a Congregational institution) and kept the rest in the state treasury. After 1814 most Episcopalians voted for the Republicans.
While the Episcopalian change of heart was hardly for an ennobling reason, the final push for disestablishment was highly principled. By the 1810s an established church in the United States was an anachronism. It never existed in Rhode Island and was abolished elsewhere by the 1780s. When the War of 1812 ended unexpectedly in late 1814, the U.S. Treasury was left with a large sum of money to return to the states. Connecticut eventually received $145,000, and the Federalist General Assembly in October 1816 decided to distribute it as follows: 1/3 to the Congregationalists, 1/7 to Yale (also Congregationalist), 1/7 to the Episcopalians, 1/8 to the Baptists, 1/12 to the Methodists, and the balance to the state treasury.
This Act provoked outrage from all the dissenters, who nobly accused the General Assembly of trying to bribe them to perpetuate enforced support of religion, and of ignoring the minor sects, such as the Quakers. They also complained, somewhat less nobly, that the percentage split favored the Congregationalists. As a result of this legislation the Republicans allied with the dissenters to form the Toleration Ticket for the Spring 1816 elections. Oliver Wolcott ran for Governor and Jonathan Ingersoll, a prominent Episcopalian, ran for Lieutenant Governor. Wolcott narrowly lost, but Ingersoll won, as the Republicans received virtually the entire vote of the dissenters. In the Spring 1817 election, this was sufficient for Wolcott to defeat the Federalist candidate for the first time in Connecticut history. The margin of victory was a mere 600 votes. The next Spring Governor Wolcott called for a constitutional convention, one of whose lasting achievements was the disestablishment of the Congregational Church.
Before 1818, separation of powers did not exist in Connecticut. The General Assembly was the final source of most power in the colony and state. The Governor was merely the presiding officer of the Council. He had no power to veto bills passed by the General Assembly and little power to appoint executive officials. The only time he was a really important officer was during the Revolutionary War, when his power as commander-in-chief of the state militia came to the fore.
The judiciary was strictly subordinate to the General Assembly. If a litigant was disappointed with a decision of a judge, he could go to the General Assembly, which if it so chose could simply overrule the judge. In the 1700's the General Assembly gradually began to tire of considering the petitions of disgruntled litigants, so in 1784 it created the "Supreme Court of Errors," which consisted of the entire Council. This was somewhat similar to what prevails today in Great Britain, where the House of Lords is the final appeals court.
Even after the Supreme Court of Errors was created, the General Assembly continued to meddle in judicial affairs. In Calder v. Bull, the General Assembly in 1795 essentially overruled a decision of a court in a probate dispute. The case eventually went to the United State Supreme Court in 1798, where a claim was made that is was improper for a legislative body to overrule a judicial decision. The U.S. Supreme Court held that there was nothing in the federal constitution to prevent it.
By the beginning of the 1800's, the Connecticut system was an anachronism. All states except Rhode Island had some form of separation of powers. Even when the General Assembly stayed out of the judicial business, there was much criticism of the role of the Supreme Court of Errors. Since it consisted of the members of the Council, it was made up of politicians presided over by the Governor or Lieutenant Governor. Some members of the Council were lawyers who repeatedly appeared before judges whose decisions they were reviewing on appeal.
In 1806, the political character of the Supreme Court of Errors was changed by statute. In that year, the membership of that Court was changed from the Council to the nine members of the Superior Court when they were sitting together.
While the 1806 act turned the Supreme Court of Errors into a judicial body, it did not end meddling in court decisions by the General Assembly. In 1815, Chief Justice Zephaniah Swift convened a special court to try Peter Lung for murder. He was duly convicted and sentenced to die. Lung then filed a petition with the General Assembly claiming that the trial was procedurally improper. The General Assembly agreed, set aside the conviction, and ordered a new trial, where he was promptly convicted and hanged.
Lung's Case came three decades after most of the other states and the federal government had assured their judiciary freedom in their proceedings from interference by the legislatures. It outraged the Connecticut judges, who were Federalist to a man. Led by Swift, who wrote a pamphlet in 1816 attacking legislative interference with a judicial decision, the judiciary demanded separation of powers. In 1816, judges (even chief justices) were not timid about expressing their views off the bench. Chief Justice Swift had this to say in his pamphlet about legislative control over judicial decisions:
We should be thrown afloat on the wide ocean of uncertainty, without a compass to direct our course. The legislature would become one great arbitration, that would engulph all the courts of law, and sovereign discretion would be the only rule of decision: a state of things equally favorable to lawyers and criminals. In such a scramble it can easily be foreseen what sort of characters will best succeed.
When Oliver Wolcott was elected Governor in 1817, an independent judiciary was one of the planks in his platform and became a key factor in his call for a constitutional convention in 1818.
Before the Revolution, in Connecticut any male at least 21 could become a freeman (voters in state elections) if he owned real estate with an assessed yearly rental value of 40 shillings ($7.00) or owned personal property assessed at 40 pounds ($134). Since all personal property except cattle was exempt from taxation, a man wanting to vote as a freemen must as a practical matter have owned land. Unlike a majority of the States, Connecticut did not liberalize its suffrage laws after the Revolution. Nor did it change its poll tax, which amounted to a few dollars per person per year.
The lack of agitation to change the suffrage throughout the late 1700s probably is explained by the fact that most males in Connecticut owned some real estate, and it appears that the $7.00 yearly value was easy to meet. Also, there were generally no property qualifications for town meetings and local elections. By 1800, as business was beginning to flourish and many males did not own land, the suffrage laws became more oppressive. In East Guilford (now Madison) 79% of adult males were qualified to vote in 1740, but only 65% were in 1800. In Kent the numbers were 79% in 1751 and 63% in 1796.
As the Republican party began to threaten the Federalists from 1800 on, the Federalists retaliated by restricting the suffrage even more. Before 1801, only the selectmen had to approve adding a male resident as a voter. Apparently some selectmen, such as in Woodbury, were notorious for admitting any male as a voter who was a resident and over age 21. Since some towns voted Republican in 1800 and since the state government was solidly Federalist, an act was passed in 1801 to require approval by state and local officials. This led to a tighter enforcement of the suffrage laws. In one case in 1806, one voter was disenfranchised because his property lost value and went below the voting threshold. The 1801 act also required the applicant to have owned the property at least four months before he was made a voter.
During the first decade of the 1800s, the Republicans consistently advocated expanding rather than contracting the suffrage. In their view, any resident who had served in the militia or paid taxes should vote. Nobody, including the Republicans, attacked the poll tax, but the Federalists became more and more reactionary. Federalist David Daggett argued "that governmental stability meant nothing to the penniless man who exhausted his earnings in the grog shop, to the mere bird of passage, or the merchant whose wealth was in moveable goods." Federalist Noah Webster, of dictionary fame, did not add to his luster by suggesting in 1803 that each taxpayer with an assessment under $100 should have one vote; $100-200, two votes; and over $200 plus all ministers, three votes. Webster was opposed to all taxpayers having the same vote because this would mean increased influence by new immigrants and everyone knows that Rome fell because of the influence of foreigners.
The Federalists fought on in the courts and in the General Assembly. In 1802, Seth Wetmore was successfully prosecuted for sedition for advocating universal suffrage. In 1813, an act was passed requiring that real property used for voting eligibility be free of a mortgage (think what that would mean today!) and the $134 personal property test was effectively raised to $194. In 1814 blacks were officially disenfranchised. Since blacks born after March 1, 1784 were free at age 25 (those born after August 1, 1797 would be free at age 21), this act was just in time to prevent the trickle of newly freed blacks from voting. Another act in 1814 established heavy fines for dishonesty in qualifying as a voter.
By 1816, the Federalist laws had become a scandal. Some say that only 10% of the adult white males were eligible to vote; in any event the number was well under 50%. It is on such an injustice that revolutions are based. But a revolution was unnecessary, for in 1817 the voters finally - if barely - ousted the Federalist Governor, John Cotton Smith, and voted in Oliver Wolcott, a former Federalist who ran on the Toleration ticket. This ticket included Republicans and disaffected Federalists who rallied around his platform, which included broadening of the suffrage. Since the upper house of the General Assembly (the Council) was still dominated by Federalists, nothing was accomplished in 1817, but in 1818 Wolcott was reelected by a larger majority and most of the Federalists were turned out of the Council. One of the acts of the General Assembly in the Spring of 1818 was to give the vote to all adult white males who paid taxes or served in the militia. Another of its acts was to call for a constitutional convention.
After minimal debate in which the Republicans solidly favored a convention and the Federalists were split, an act was passed calling for a constitutional convention. The most fateful vote in the General Assembly was that whatever constitution was proposed need be ratified by only a majority of the voters. The vote on this point was 81-80, with the dissenters favoring anywhere from 60% to 80% affirmative vote of the voters or towns. If any of the dissenters' proposals had carried, the constitution, which passed by a vote of 13, 918 to 12,364, would have failed.
The towns were instructed to elect the same number of delegates as they had representatives (one or two each). Since the suffrage had just been extended to all taxpayers and veterans, large numbers of new voters signed up in the interim. In Hartford there were 85 new voters for the delegate election on July 4, 1818, when a total of 796 voted. So the new suffrage law probably increased the vote over 10%. Presumably this new 10% heavily supported the Republicans, who were responsible for their right to vote.
Rather than oppose the convention, the Federalists proceeded to nominate many of the most illustrious legal minds in the state for delegates. As a result, in spite of their recent political defeat the Federalists succeeded by the quality of their candidates in electing approximately 90 of the 200 delegates for the convention.
The convention, which was held in three weeks in August and September 1818, was indeed dominated by some of the best legal minds in the state. While some issues concerned partisan feuds, the conduct of the convention was mostly led by people who understood the importance of what they were doing and wrote a constitution of which we can generally be proud of in 1988.
The leading delegates were as follows: Federalists Judge Jesse Root and ex-Governor John Treadwell (the two most reactionary members of the Convention), Judge Stephen Mitchell, recently retired as Chief Justice, Timothy Pitkin, a former Congressman, Aaron Austin, a member of the Council for 25 years until he was ousted in 1818, General Nathaniel Terry and Henry Terry; Tolerationists Governor Oliver Wolcott, David Tomlinson, a new member of the Council, Nathan Smith, a prominent lawyer and Episcopalian; and Republicans Pierpont Edwards, the United States District Judge for Connecticut, Joshua Stowe, a supposed unbeliever, and Gideon Tomlinson.
Unlike the secret federal constitutional convention of 1787, the Connecticut constitutional convention was conducted under the glare of the press. Both the Connecticut (Hartford) Courant and the Connecticut (New Haven) Journal jointly reported the debates in great and identical detail but not verbatim.
The 200-man convention began in Hartford on August 26, 1818. Governor Wolcott was chosen chairman and a vote was taken (over the dissents of Root and Treadwell) to draft a constitution. On August 27, a committee of 24 was appointed to prepare a draft constitution with Edwards as Chairman. On August 28, the committee submitted a draft Preamble and Bill of Rights. This was not one of the convention's finest moments, for a suspicious newspaper soon disclosed that this draft was essentially identical with the Preamble and Bill of Rights in the 1817 Mississippi constitution. All this proves is that the Bill of Rights, so revered and yet so litigated in 1988, was not, except for religious freedom, a matter of great controversy in 1818. Root and Treadwell, as well as radical Alexander Wolcott, opposed a Bill of Rights as unnecessary. This was essentially a rerun of what Alexander Hamilton had said in 1787 and was not a major objection in 1818. While the Bill of Rights refers to religious freedom, the important provision disestablishing the Congregational Church was to be put in a separate article of the constitution. In short, the Bill of Rights was passed because it seemed like a nice idea and not because it was a matter of much interest or controversy.
The real interest and controversy was over religious freedom, independence of the judiciary and the suffrage. The disestablishment of the Congregational Church yielded the most exciting debates, as the Federalists unsuccessfully tried to eliminate the disestablishment article, and then with some success to water it down. In the end, Christianity remained the constitutionally favored religion, but the Congregational Church was disestablished.
The independence of the judiciary was also the subject of lively debate. Ironically, the Federalists saw the judiciary as their last hope of retaining power and therefore became the stronger supporters of judicial independence. The most radical Republicans, such as Alexander Wolcott, ironically supported the anachronistic Federalist custom of annual appointment of judges. Most of the Federalists and the more moderate Republicans, remembering the controversy over Peter Lung's case in 1815, approved of the provision for lifetime tenure of Supreme and Superior Court judges (which was changed to eight years in 1856).
The debate on the suffrage was hot and the vote close. In the end, the convention ratified the action of the 1818 General Assembly in allowing suffrage to all adult white males who paid taxes or had served in the militia.
The convention, while providing for an independent judiciary, also provided for an independent executive. Semi-annual sessions were abolished in favor of annual sessions. In an obvious attempt to gain New Haven County voters. the prior practice of alternating sessions between Hartford and New Haven was to be constitutionally mandated. The Council was renamed the Senate (The Courant reported that "Considerable time was spent upon this motion, and a great many desultory remarks made, which are not important to be detailed") but elections for the twelve Senators were to continue at large.
The most disappointing work of the convention was its failure to change the method of choosing members of the lower house of the General Assembly. In 1818, all towns regardless of size had two votes except for several newer towns that had only one vote. In the 1700's this was acceptable because there was not a huge disparity in the population of most towns. By 1818, many rural towns were beginning to decline in population, while Hartford and New Haven were growing. While there was a stirring speech by General Terry favoring more democratic representation, the convention did nothing significant about this problem, which would fester for about a century and half until the federal courts forced the end of Connecticut's disgrace in the 1960's.
The Constitution was approved 2-1 by the convention on September 16, 1818 with the most reactionary Federalists and most radical Republicans in opposition. The former were upset with the whole principle of a new Constitution, and especially with the expanded suffrage and the disestablishment of the Congregational Church; the latter were upset with the independence of the judiciary and with at-large Senators, both of which was thought to threaten the Republicans' recent political victories.
The Constitution was written in three weeks; the voters were likewise given three weeks to consider it. The vote was on October 5. Prominent Federalists such as General Terry lobbied hard and effectively in support of the Constitution. The vote was 13,918 in favor to 12,364 opposed. It turned out to be a brilliant move to continue half the Legislature's session in New Haven, for New Haven and Fairfield counties voted almost 2-1 in favor of ratification, whereas Hartford County was only slightly opposed. On October 12, 1818, Governor Wolcott proclaimed the Constitution to be the supreme law of the state.
Tapping Reeve founded the first law school in the United States in 1774, the Litchfield Law School, and was its principal instructor for many years. He wrote important treatises on family and probate law. He was also a rabid Federalist and was the target of an unsuccessful criminal prosecution for seditious libel by the Jefferson administration (U.S. v. Reeve) for his attacks on the national government. Reeve made these political attacks while he was a Superior Court judge. Judges act a bit differently today!
Zephaniah Swift was the pioneer in the development of an American common law distinct from England. When there were no statutes in point, it was in the colonial era common to follow whatever the English courts were doing. In 1795, Swift wrote the first text on American law, called "A System of Laws," which stated what in his opinion the common law of Connecticut was, based on what Connecticut judges were actually doing. It was a radical departure from English precedents, and was an appropriate departure too if the "Revolution" was to have practical legal meaning. Swift also was a Federalist, but less fanatic than Reeve and after 1800 one of the supporters of disestablishment of the Congregational Church. He was also a delegate to the infamous Hartford Convention in 1814, where New England legislatures considered seceding from the Union because of the unpopular War of 1812.
Reeve was on the Supreme Court of Errors from 1807 until his retirement at age 70 in 1815; Swift was on the Court from 1807 until 1818, when he ironically became a "victim of toleration" (to quote a contemporary Courant article) and was not reappointed.
In many states today, lawyers and judges tend to rely mostly on recent court decisions, and to belittle older ones. Such an attitude is a serious mistake in Connecticut. While Reeve and Swift were on the Supreme Court of Errors, it was a great court. In 1814, Chief Justice Reeve wrote the first known American search and seizure case, Grumon v. Raymond. The sheriff was held liable because the search warrant was invalid. Grumon has been cited throughout the nation and is a leading authority on the subject even today. Any lawyer who wants to see a great court in action should read Reeve's 1814 opinion in King v. Middletown Insurance Co., one of the earliest American cases concerning an insurance claim, or Swift's 1814 opinion on Selleck v. French, which rejects English precedents on awarding interest because they "do not appear to be either founded in justice or consistent with each other." Especially interesting are those cases in which Swift and Reeve wrote opposing opinions, as in Naylor v. Fosdick (1810) (no right of debtor to prefer one creditor over another) and Mitchell v. Preston (1811) (debt is voided where rent is really usurious interest). In both cases Swift wrote the majority opinion and Reeve dissented.
So when 1818 came, the Framers of the Constitution knew what the Framers of 1787 did not know: that the judiciary was an important part of the government. Accordingly they devoted a great deal of time to that part of the constitution. The judges were given lifetime tenure to age 70, and the Supreme Court of Errors was reduced to five judges, with all of them continuing to have concurrent duties as Superior Court judges. (Before 1818, they sat as Superior Court judges in groups of three; after 1818 they sat alone.) The Framers certainly must have expected that the constitutional history of the state would henceforth often be in the hands of the judiciary.
And so it was, but perhaps not quite in the direction one might have thought. Those Federalists who tied their fading hopes for power to the new constitution and its independent judiciary were no fools. Most of the competent judges and lawyers were Federalists, and some of the few competent Republicans, such as Abraham Baldwin, Gideon Granger and Lyman Hall, had left the state to make their mark elsewhere. The Republicans did not have to worry about Reeve, who was too old, or Swift, whom they ousted, but there simply were too few available competent Republicans. So 1819 started with two Federalists (including the new chief justice, Stephen Hosmer) out of five on the Supreme Court of Errors, and in 1826 David Daggett, the arch foe of the Republicans before 1818, joined the Court. Unlike many politicians of today, the politicians of 1826 chose competence over ideology.
The result was a conservative Supreme Court of Errors, a situation which lasted until the 1890s. Today we can choose between the vision of a Rehnquist or a Brennan; Connecticut had the same choice in the 1820s and 30s: the conservative vision of David Daggett, and the activist vision of the leading Republican on the Court, John T. Peters. These visions collided in the most important early constitutional cases: Atwood v. Welton (1828) and Starr v. Pease (1813). In Atwood v. Welton, the majority opinion by Justice Daggett held that a witness may not testify if he denies all punishment in the afterlife. A prior decision in 1809 (Hamilton v. Hempsted) had so held, but the Plaintiff claimed the religious freedom provision of the 1818 constitution required a contrary result. Daggett dismissed this claim as follows: "But cannot a person be free in his profession and worship, who is excluded from giving testimony, on the ground of his denial of all liability to further punishment? How does his exclusion affect his belief, profession or mode of worship? It has no possible bearing on either." The strict constructionists of the 1980s would surely like to have Judge Daggett available for duty today! Peters noted in his dissent that the majority opinion would disqualify many Universalists, all Mahometans, and any "Catholic with an indulgence in his pocket." Who says old cases make boring reading?
This is not to say that the courts were gutting the 1818 constitution, just that they were narrowly construing it. Religious freedom really did exist, as a newspaper editor who libeled a political leader for being an infidel found out. In Stow v. Converse (1812), the editor attempted to show that Stow in fact was an infidel by producing evidence that he had opposed a particular religious doctrine. Chief Justice Homer stated: "I deeply regret, that in this age of religious freedom, it should have ever occurred to any one, that an expression of belief, however erroneous, on a disputed point of doctrine, in the respectable churches of this state, was an attempt to subvert religion; and what is more extraordinary, that a court of law should be called on to prescribe bounds to theological discussion." While religious freedom may have been flourishing, one wonders about the status of freedom of the press, a matter of no discernable interest to the Court in that decision. On the other hand, the Connecticut Legislature was somewhat ahead of its time concerning freedom of the press. In 1804 it made truth a defense to a libel action.
While Atwood may be a mere footnote in Connecticut history, Starr v. Pease is not. Like the independent prosecutor case decided by the U.S. Supreme Court this Spring (Morrison v. Olson), Starr v. Pease is about power. In the prosecutor case, it is about legislative vs. executive power; in Starr v. Pease it is about legislative v. judicial power.
Ms. Starr had been the wife of John Lewis, who owed money to Pease. Ms. Starr owned real estate, which under the law at that time automatically came under the control of her husband. Pease sued Lewis on the debt and took control of his wife's land. Meanwhile Ms. Starr convinced the Legislature to grant her a divorce. Since she was no longer married, she sued Pease to get her land back, plus damages. Pease's defense was that the granting of a divorce was a judicial act and that the divorce granted by the Legislature was therefore void.
Since the Legislature exercised extensive judicial powers during the Colonial era, one should not be surprised to hear that the Legislature often considered and granted divorces. But was not one of the purposes of the 1818 Constitution to separate the powers of government? Was that not what the uproar about the legislative interference in Lung's Case was all about? Not according to Justice Daggett:
A further objection is urged against this act, viz that by the new constitution of 1818, there is an entire separation of the legislative and judicial departments, and that the legislature can now pass no act or resolution, not clearly warranted, by that constitution; that the constitution is a grant of power, and not a limitation of powers already possessed; and, in short, that there is no reserved power in the legislature since the adoption of this constitution. Precisely the opposite of this, is true. From the settlement of the state there have been certain fundamental rules, by which power has been exercised. These rules were embodied in an instrument, called, by some, a constitution, by others, a charter. All agree, that it was the first constitution ever made in Connecticut, and made too, by the people themselves. It gave very extensive powers to the legislature, and left too much (for it left everything almost) to their will. The constitution of 1818 professed to, and in fact did, limit that will. It adopted certain general principles, by a preamble, called a declaration of rights; provided for the election and appointment of certain organs of the government, such as the legislative, executive and judicial departments; and imposed upon them certain restraints. It found the state sovereign and independent, with a legislative power capable of making all laws necessary for the good of the people, not forbidden by the constitution of the United States, nor opposed to the sound maxims of legislation; and it left them in the same condition, except so far as limitations were provided.
In short, what Daggett was saying was that, unless the Constitution specifically limited the powers of the Legislature in some way, the Legislature could go on doing what it had been doing for almost 200 years. Since the Constitution said nothing about divorces, therefore, the Legislature could go on granting them. Peters, in a concurrence dubitante, said he had no doubt that a legislative divorce was void as an assumption of judicial powers, but because "of the appalling consequences of nullifying all legislative acts of divorce, he should acquiesce in the opinion of the Court."
The quotation from Daggett's opinion shows that he had mellowed somewhat from his pre-1818 political position in which he had vigorously defended the extensive powers of the Legislature. But the result was the same in 1831: legislative supremacy was still the law of the land in Connecticut.
The principles enunciated in Starr v. Pease were followed in Pratt v. Allen (1839) (Legislature has power to prescribe how election of sheriffs shall take place unless the Constitution specifically says otherwise), White v. Fisk (1851) (cy pres doctrine - that if what a testator wanted cannot practically be done then something approximating it should be done - is in the control of the Legislature rather than the courts), and Wheeler's Appeal from Probate (1877) (Legislature has power to extend the time for appealing from a ruling concerning a particular estate).
In Wheeler's Appeal, Justice Loomis admitted that the law would be unconstitutional if it had been passed in any of the other New England States or in New York or Pennsylvania. But Loomis referred to the extreme powers the General Assembly had always had in Connecticut. So Starr v. Pease flourished in isolation in Connecticut until it was abruptly uprooted at the very end of the nineteenth century.
Legislative supremacy over the judiciary was exceeded by its supremacy over the executive. Before 1818, the Governor was not an especially important figure, with the exception of Governor Trumbull during the Revolutionary War. Very little was changed in 1818, either in theory or in practice. Before 1818 the General Assembly selected the judges; after 1818 the situation was the same until 1880, when the power of nomination was given to the Governor. Before 1818 the Governor had no veto power; after 1818 he had the theoretical power to veto, but any veto could be overridden by a majority vote of both houses of the General Assembly. Since the original Act had to be so passed, the vote was practically useless. From 1818 to 1850, only one veto was sustained. That was in 1837, but the Legislature had its vengeance, for Governor Edwards was not renominated for the next election. In 1848 Governor Bissell vetoed a resolution concerning divorce; his veto was overridden, and he was denied renomination. Connecticut had to await another war - in the 1860s - before it would tolerate another strong chief executive.
While the Legislature successfully flexed its muscles against the Governor, its muscle-flexing against the courts was not always successful. The doctrine of Starr v. Pease, after all, was voluntarily adopted by the judges, not imposed on them by the Legislature.
Separation of powers was early given considerable teeth when the Legislature attempted to invade the vested rights of individuals. Symsbury Case in 1785 has already been referred to.
In Goshen v. Stonington (1822), the Legislature had validated a number of marriages that were technically defective because of the lack of authority of a Methodist deacon to perform marriages. The facts of the lawsuit are complicated, but the bottom line is that the Town of Stonington claimed the Legislature could not pass retroactive legislation. While affirming the constitutionality of this statute on the ground that it was just and reasonable, Chief Justice Hosmer also warned that he would not hesitate to strike down a statute that he considered unconstitutional. Some of his language seems somewhat ironic today, although it undoubtedly was not so in 1822:
With those judges, who assert the omnipotence of the legislature, in all cases, where the constitution has not interposed an explicit restraint, I cannot agree. Should there exist, what I know is not only an incredible supposition, but a most remote improbability, a case of the direct infraction of vested rights, too palpable to be questioned, and, too unjust to admit of vindication, I could not avoid considering it as a violation of the social compact, and within the control of the judiciary. If, for example, a law were made, without any cause, to deprive a person of his property, or to subject him to imprisonment; who would not question its legality, and who would aid in carrying it into effect?
It took over twenty years for Hosmer's warning to be put to the test. In The Hartford Bridge Company v. East Hartford (1844), the Supreme Court of Errors expressly declared a statute unconstitutional that revived a ferry across the Connecticut River contrary to a contract that the state had entered into with the Bridge Company in 1818.
During the Civil War, the Legislature passed a statute making it easier for soldiers to vote by absentee ballot. The Legislature was concerned with whether the statute was constitutional, so a letter was written to the justices requesting their opinion. In Opinion of the Judges (1862), the Supreme Court of Errors declared the statute unconstitutional. Five years later, the Legislature asked the Court's opinion on whether another statute was constitutional. This time the Court refused to answer the question, essentially telling the Legislature: stop writing us letters and go bring a lawsuit. This was hardly a Court that feared the power of the Legislature.
Finally there is the status of the towns. Connecticut has a strong tradition of local rule, and it was three towns, Windsor, Hartford and Wethersfield, that decided to form a general government. So one might think that the towns are related to the state the way the states are related to the federal government. But that is totally untrue. There is nothing in the 1818 Constitution about the powers of towns, except that each town had one or two votes in the lower house of the General Assembly (see Chapter VIII). In Webster v. Harwinton (1864), the Supreme Court of Errors held that towns have no inherent powers and are wholly dependent on the Legislature for their powers. That is still the law today.
So from 1818 until the 1890s, this picture of powers of government appears in Connecticut: a strong Legislature, wholly subordinate towns, a weak Chief Executive (except in wartime), and a cautious Supreme Court of Errors, able to lead but often willing to follow.
Morris immediately set out to reform the Supreme Court of Errors just as Presidents have attempted to reform the U.S. Supreme Court in this century. One of his first nominations in early 1893 was Simeon E. Baldwin, a renegade Republican who was also one of the most illustrious lawyers of the day. He had written the leading digest of Connecticut cases in 1870, helped found the American Bar Association in 1876, and been one of the principal authors of the 1879 statute which reformed Connecticut court procedure. Nevertheless he had accumulated a number of political enemies and it was contrary to tradition to appoint someone other than Superior Court judges to the Supreme Court of Errors. Initially the Legislature rejected his nomination, but on reconsideration he was approved by one vote.
At the same time, Governor Morris nominated William Hamersley and George Wheeler to the Superior Court. Hamersley had been State's Attorney for Hartford County for twenty years, was on the 1879 court procedure committee with Baldwin and was generally considered one of the most scholarly lawyers in the state. Wheeler was less well known but was memorable for being only 32 years old. Hamersley was promoted to the Supreme Court of Errors the next year; Wheeler had to wait until 1910, but then was on the Supreme Court of Errors for twenty years.
While Baldwin and Hamersley were both nominated by Governor Morris, they turned out to have different visions of the powers of courts, with Hamersley leading and Baldwin dissenting. When the appropriate cases arose, Hamersley seized the opportunity to alter the balance of power among the branches of government.
Before the main act came a sideshow, Styles v. Tyler (1894). Dr. Styles sued his patient for payment of a bill, but the trial judge ruled for the patient because the doctor did a poor job. On appeal, Dr. Styles, pursuant to a recently passed statute, requested the Supreme Court to review the factual finding that he had done a poor job. In most other state and federal courts, this would not have been an unreasonable request and review would have been granted without question. Hamersley for the majority refused to review the facts. He said the Court was the Supreme Court of Errors, and "Errors" had a technical meaning, namely, that only errors of law, not errors of fact, could be reviewed on appeal. Hamersley noted that in the colonial era there had been much criticism when the General Assembly had reviewed the facts in lawsuits. This led the General Assembly in 1784 to yield all authority over factual matters to the Superior Court judges. At the same time it set up a political Supreme Court of Errors (the Lieutenant Governor and Council) to review errors of law only. While the political makeup of the Court was eliminated in 1806, its jurisdiction was not changed. Hamersley said this is the type of court the Framers had in mind in 1818, and he referred to an opinion by Chief Justice Daggett with which Justice Peters concurred, Weeden v. Hawes (1834), which had so held. In short, a few months after his appointment, Justice Hamersley was lecturing the General Assembly on the fundamental powers of the basic organs of government. Justice Baldwin and one other justice disagreed, Baldwin writing a brilliant dissenting opinion. Baldwin missed one point in his dissent. Hamersley emphasized the importance of Weeden v. Hawes by noting that Justice Peters was in the 1818 constitutional convention. Hamersley confused Justice John T. Peters, who was not in the convention, with Dr. John S. Peters, who was. Don't believe everything you read just because it is in a Supreme Court opinion!
After Styles v. Tyler, came what can easily be called a judicial coup d'etat by Justice Hamersley. In one blow, he overruled Wheeler's Appeal, repudiated seventy years of constitutional law based on Starr v. Pease, and essentially told the General Assembly to keep its nose out of judicial affairs. The case was Norwalk Street Ry. Co's Appeal (1897). It is ironic that the case superficially had nothing to do with the General Assembly taking over a judicial function.
The facts in Norwalk Street Ry. Co.'s Appeal are about as unexciting as those in Styles v. Tyler. It is a peculiarity, and perhaps a glory, of our common law court system that a humble dispute between two insignificant people can alter the course of our government. In 1893, the General Assembly passed an act empowering the town governments to decide where trolley tracks would go, but also authorizing the trolley companies to ask the Superior Court to make that decision if the towns did not. The City of Norwalk ignored a petition from the trolley company and the company duly appealed and asked a Superior Court judge to decide where the trolley tracks ought to go. The judge decided where the tracks should go and the city appealed, claiming the judge was performing a legislative rather than a judicial act.
Technically all the Supreme Court of Errors had to decide was whether a judge could properly decide where trolley tracks in Norwalk should go. But that was not what Justice Hamersley had in mind. He decided this was a good case to reexamine the whole doctrine of separation of powers. Politically, this was a good case to use, because, like John Marshall's Marbury v. Madison, the result in the particular case actually took away powers from the judiciary. Therefore the General Assembly was not likely to be angry with the decision. But the implication for anyone who bothered to think about the long range were almost revolutionary.
What Hamersley said for the majority was that Daggett was all wrong in Starr v. Pease in thinking that the 1818 Constitution merely continued things as they were with a few changes. Hamersley said the purpose of the Constitution was to separate the three branches of government from each other; neither the General Assembly nor any of the other branches were to have any powers unless they were granted by the Constitution. This was the exact opposite of Daggett's view, which was that the General Assembly could do anything it wanted unless limited by some language in the Constitution. So Hamersley explicitly overruled Wheeler's Appeal and repudiated Starr v. Pease and all the later cases that had relied on it.
Baldwin once again dissented. He felt there was much overlap among the branches of government, and he saw nothing wrong with courts aiding administrative agencies (such as cities) in the exercise of their powers when there was the need for judicial relief. His practical opinion sounds like Justice Rehnquist's 1988 opinion in the independent prosecutor case, while Hamersley's academic opinion reminds one of Justice Scalia's dissent. But it is Hamersley's opinion that prevailed in 1897 and has prevailed since.
While the holding in Hamersley's opinion limited the powers of the judiciary, the Hartford Courant immediately recognized its broad significance. The entire 30-page opinion was reprinted verbatim in the Courant (Can you imagine that happening today?) and an editorial entitled "The Power of the Legislature" stated: "This opinion upsets and repudiates the old notion that the General Assembly of Connecticut differs from other legislatures and may do anything not specifically prohibited by the Constitution." The Courant apparently was alone in recognizing the significance of the case. Neither the New Haven nor the Bridgeport papers mentioned it, and the Norwalk Evening Hour's headline was "The City Wins. Judge Hall's Decision Permitting Double Tracks on Main Street Reversed."
All cases since 1897 have accepted the broad language of the opinion to limit any legislative encroachment on the judiciary. In Bridgeport Public Library & Reading Room v. Burroughs Home (1912), a unanimous Supreme Court of Errors declared unconstitutional a statute authorizing the Bridgeport Public Library to sell property given to it by the terms of a will which stated that the property was no longer suitable for that purpose. The Supreme Court of Errors held that the Legislature was performing a judicial act in authorizing the Library to sell the building, and so the statute violated the separation of powers. If the Library wanted to sell the building, it must get approval from a court, not the Legislature.
If anything, the Connecticut courts have become even more assertive in these turf wars with the Legislature since the early twentieth century. The Bridgeport Public Library case was specifically reaffirmed in 1971 in Hartford v. Larrabee Fund Ass'n.
As the twentieth century advanced, the Legislature began to give more and more judicial powers to the Court of Common Pleas, a lower trial court more under the Legislature's control than the Superior Court. In Walkinshaw v. O'Brien (1943), the Supreme Court of Errors, in a scholarly decision by Chief Justice William Maltbie, warned the Legislature that it might go too far in giving power to the Court of Common Pleas at the expense of the Superior Court. Then in Szarwak v. Warden (1974), the Supreme Court declared unconstitutional the power of the Court of Common Pleas to consider felony cases. The next day hundreds of convicted felons had the right to be immediately released from prison.
Another major turf war arising out of the theory of Norwalk Street Railway is the right of courts to make their own rules. This issue would never arise under the U.S. Constitution, because Congress has express constitutional authority to make rules for the U.S. Courts. Even Justice Hamersley in an 1899 case, Ockershausen v. New York, New Haven & Hartford Ry. Co., and in other cases decided around the same time admitted the powers of the Legislature to control court procedures. But in the 1950's the Supreme Court of Errors decided to take Hamersley's theory to its logical extreme. In State Bar Assn. v. Connecticut Bank & Trust Co. (1958), the Supreme Court of Errors stated that the Legislature had no power to authorize banks to act as attorneys in preparing legal documents. Lawyers are under the control of courts, and only courts can say who may and may not practice law. Three years later, the Court in Heiberger v. Clark (1961) declared unconstitutional a statute authorizing Heiberger to be admitted to the Bar even though he did not qualify under court rules as to his education. Finally in State v. Clemente (1974) the Supreme Court declared unconstitutional a statute authorizing a criminal defendant to receive certain information from the prosecutor. The statute contradicted a court rule, and the court rule prevailed.
These decisions, Norwalk Street Ry. Co., Bridgeport Public Library, Connecticut Bank, Heiberger, Szarway and Clemente, are the law today and flavor many of the important issues of the day. For example, if the Legislature wants to do something about unethical lawyers, it must tread very lightly or risk running afoul of these cases. If the Legislature wants to give criminal defendants or victims certain procedural rights, it had better make sure there is no contradictory court rule on the subject. When most people think about constitutional rights they are thinking about constitutional rights of individual citizens. But in Connecticut, constitutional rights often involve the constitutional rights of the courts.
Concerning the constitutional powers of the Governor, they have increased in the twentieth century. While he today still has no power of pardon, in 1965 he was given a significant power of veto. While previously a veto could be overridden by majority vote, now the vote must be 2/3 and in both houses of the Legislature. No longer are vetoes routinely overridden. Perhaps more important is that as a practical matter the Governor has come to hold a greater leadership role in society. Governor Cross (1931-39) did for the executive branch in Connecticut what President Roosevelt (1933-45) did for the executive branch in Washington: make it the principal source of power in government. Obviously such a practical constitutional change varies with the ability of each Governor, but it would be fair to say that a weak governor since the 1930s would be stronger than a weak governor in the 1800s.
The Framer's lack of interest in individual constitutional rights was mirrored in a judicial lack of interest, except in the area of property rights. Freedom of speech or of the press was not worth even mentioning in the libel case of Stow v. Converse (1821), discussed above in Chapter IV. Freedom of religion was not worth much in the religious oath case of Atwood v. Welton (1828), also discussed above. Jews and other non-Christians had to wait until 1965 before freedom of religion technically applied to them under the Connecticut Constitution, although a law was passed by the Legislature in 1843 allowing Jews to worship.
Slavery was a subject of some judicial interest in Connecticut. While slavery was gradually being abolished in Connecticut starting in the late 1700s, it was not completely abolished until 1848. Moreover, blacks, whether free or not, could not constitutionally vote in Connecticut until the Supreme Court of Errors issued an opinion in 1865 stating that they had a right to vote. In the most important slavery case in the state courts, Jackson v. Bulloch (1837), the Court held that a Georgia slave who accompanied her owner for a two-year visit to Connecticut became free because of the length of time the owner and the slave remained in Connecticut. The vote was 3-2, and the scholarly majority and dissenting opinions both denounced the institution of slavery. Whether blacks were citizens of the United States before the Civil War was the important issue in State v. Crandall (1834), in which Prudence Crandell was prosecuted for opening a school in Canterbury for out-of-state black girls. Chief Justice Daggett was the trial judge. He instructed the jury that blacks were not citizens of the United States. By so holding, Judge Daggett correctly predicted the decision of the U.S. Supreme Court over twenty years later in the Dred Scott decision. Onlookers were hoping that the State v. Crandall appeal would settle that great constitutional issue, but the Connecticut Supreme Court of Errors ducked the issue and threw her conviction out because of a technical error made by the prosecutor. In 1865, the Reporter of the Supreme Court stated that at least three of the five justices in 1834 disagreed with Chief Justice Daggett and almost issued a ruling declaring that blacks were citizens of the United States. Had the Court done so, the issue almost certainly would have been appealed to the U.S. Supreme Court, and Chief Justice John Marshall, rather than Roger Taney, might have decided the issue. Perhaps there would have been no Civil War had blacks been declared citizens by the U.S. Supreme Court in 1835. On the other hand, perhaps the Connecticut Supreme Court of Errors was wiser when it ducked the issue in 1834 than the U.S. Supreme Court was when it decided the issue in 1857.
The real interest of the courts in the 1800s was individual property rights. The first statute declared unconstitutional on any ground was the one encroaching on the plaintiff's contractual rights in The Hartford Bridge Company v. East-Hartford (1844), discussed above in Chapter IV. A similar constitutional claim was barely lost on a 3-2 vote in Hartford Bridge Company v. Union Ferry Company (1860). While national prohibition did not come until 1919, Connecticut had a short-lived mini-Prohibition law in the 1850s and 60s. By a statute passed in 1854, alcohol could be owned for personal use, but it could not be sold or owned with intent to sell. Essentially it is like the marihuana laws in some states today. In short, the 1854 law shut down all saloons. The saloon owners were arrested. They claimed their property rights were being violated, but their claims were rejected in The State v. Brennan's Liquors and The State v. Wheeler 1856).
Due process of law was considered in Bostwick v. Isbell (1874), when the Court said it would violate due process for the Legislature to permit a judge to dissolve a partnership without prior notice to all the partners, and in Camp v. Rogers (1877), when the Court said it would violate due process for legislators to hold the owner of a vehicle liable in all cases for treble damages for injuries caused by the operator of the vehicle. The Court said this would make an owner liable if the vehicle was stolen. Acting as non-strict constructionists, the Court interpreted "owner" to mean "person in control" of the vehicle. Thus, to use the Court's own words, the Court was "astute in giving a construction to a statute that shall save it from invalidity."
Women's rights has an interesting history in Connecticut. Considering that the Connecticut Constitution limited the right to vote to males until the Nineteenth Amendment to the United States Constitution was passed in 1920, one might think that Connecticut lagged the country concerning the legal rights of women. This is a partial misconception. In the colonial era, following English law, women and their property were legally under the control of their husbands. The Legislature began to alter this in the mid-1800s, and in 1877 a broad statute was passed emancipating women from the control of their husbands concerning their property, their earnings, and their right to make contracts with others.
The Connecticut courts early distinguished themselves concerning women's rights. One of the leading cases in the country is In re Hall (1882), in which Mary Hall was admitted to the Connecticut Bar under a statute that permitted the admission of "persons." While this may not today seem to be an extraordinary decision, the United States Supreme Court was in the same era rejecting the claim of a woman to join the Illinois Bar. Justice Bradley's concurring opinion on U.S. Supreme Court expressed the general views of the day: "The paramount destiny and mission of women are to fulfill the noble and benign office of wife and mother." Bradwell v. Illinois. (1872)."
The Hall decision was written by Chief Justice John Park. He has had a low reputation among the Connecticut judiciary. In his official obituary printed by the state in 1897, it is stated that
he had acquired but a very limited legal practice and probably would never have attained a very high success at the bar. He had a commanding figure and a great power of endurance, but his mind was slow in its movements, and he was wholly without grace of speech or manner. Withal he had but a very limited knowledge of law. He never became a man of book knowledge. He had, however, a sound practical judgment and strong common sense."
The Hall decision is seven pages long, and not one case is cited. But Park does say:
We are not to forget that all statutes are to be construed, as far as possible, in favor of equality of rights. All restrictions upon human liberty, all claims for special privileges, are to be regarded as having the presumption of law against them, and as standing upon their defense, and can be sustained, if at all by valid legislation, only by the clear expression or clear implication of the law.
Judge Pardee dissented:
Perhaps a judge's legal reputation should not be decided by counting the number of precedents he cites. In any event, if citizens today are looking for historical precedent to further the goals of equal rights for women, the centerpiece should be In re Hall and Chief Justice Park.
In England women were not admitted to the bar, and this rule of exclusion obtained both in the colonial and our state judicial systems. I think therefore that whenever the legislature has spoken of the admission of "persons" to the bar it referred to persons not affected by this rule; and that it is the duty of the court to give effect to the meaning of the statute as thus ascertained; to follow rather than to precede the legislature in declaring that it has changed its mind.
Connecticut also apparently was the first state to allow a suit by a wife for alienation of affections. While this type of case is not abolished entirely, in the 1800s the rule everywhere was that the husband could sue a man who had seduced his wife, but the wife could not sue the woman who had seduced her husband. The theory was that the inferior wife had no property rights in the affections of her superior husband, while the superior husband had a property rights in the affection of his inferior wife. In Foot v. Card (1889), Justice Pardee (the same one who had dissented in Hall) wrote for a unanimous Court refusing to follow the English precedents and allowing Mrs. Foot to proceed with her lawsuit against Ms. Card.
So until 1890, individual constitutional rights were considered in a few areas, such as religious freedom, slavery, private property, due process and sexual equality, and largely ignored in others, such as criminal law, freedom of speech and privacy. In only one area concerning individual constitutional rights can Connecticut be said to have been in the vanguard in the 1800s, and that was women's rights.
Early in this era, Justice Hamersley, a prosecutor for twenty years, stated for a unanimous Court in State v. Conlon (1895):
Our Bill of Rights constitutes the fundamental condition on which all powers of government can be exercised. Its more definite declarations are chiefly concerned with the administration of justice, especially of the criminal law, the preservation of the trial by jury, the protection of private property from confiscation for public use, the right of the citizen to bear arms and the subordination of the military to equal enjoyment of these essential rights belonging to citizens of a free government is guaranteed, not in narrow phrases of detailed statement, but in terms as broad as those which vest the legislative power in the General Assembly, or the judicial power in the courts.
In Conlon, the Legislature passed a statute giving local officials the power to issue licenses to itinerant peddlers, but the statute did not set any standards under which licenses should be issued. In short, the local officials could give or deny licenses arbitrarily. Mr. Conlon was arrested and convicted of peddling without a license.
Article First, Section 1, of the Connecticut Bill of Rights states "That all men when they form a social compact, are equal in rights; and that no man or set of men are entitled to exclusive public enrollments or privileges for the community." The Court held "that an Act of the legislature, the only legal effect of which is to grant exclusive privileges in the conduct of an ordinary lawful business, in respect to which the government has no exclusive perspective, is obnoxious to the first section of the Bill of Rights." It is difficult to imagine a more sweeping and dramatic statement about the importance of the Connecticut Equal Protection Clause.
Conlon is still one of the leading "no standards" cases in the country and is surely the law of Connecticut today.
Hamersley confronted the doctrine of double jeopardy in State v. Lee (1894). Mr. Lee was acquitted of second degree murder and the state appealed. Lee claimed double jeopardy, but Hamersley said that doctrine only applied if the state brought a second case against Lee; it did not apply to an appeal in the first case. Hamersley stated: "The end is not reached, the case is not finished, until both the facts and law applicable to the facts are finally determined. The principle of finality is essential, but not more essential than the principle of justice. A final settlement is not more vital than a right settlement."
Lee was the leading case in the country for many years. Justice Oliver Wendell Holmes called it "a well reasoned decision," and Justice Benjamin Cardozo for a unanimous U.S. Supreme Court held that the Connecticut rule was consistent with the principles of "ordered liberty." (Palko v. Connecticut, 1937). But Lee is not the rule today; in 1968, the U.S. Supreme Court overruled Palko and held that the Lee rule violated principles of double jeopardy.
Connecticut at the same time confronted the exclusionary rule in criminal cases. In State v. Griswold (1896), a majority of the Court appears (the decision is somewhat murky) to have held that there is no rule excluding evidence if it is illegally seized by the police. Two of the judges concurred in the result because the police had been given permission to search the room. But the concurring opinion by Justice Baldwin is worthy of quotation today as we reconsider the value of the exclusionary rule:
The common law was ready to supply a remedy for any unreasonable search or seizure, by an action of trespass against the individuals who made it. Our Declaration or Rights would be meaningless if it did not seek to do more than this. Its guaranties were designed to protect the citizen against the State, that is, against any and every officer claiming to act under its authority; and to do so in a way that would repress the wrongful act most efficiently. Upon the trial of a civil action between private individuals, either can introduce any relevant paper in evidence, notwithstanding he may have obtained it in a manner not warranted by law. (citations omitted.) If the constitutional guaranty now under consideration is to be liberally interpreted in favor of the citizen, it would be difficult to apply the principle of such decisions to criminal prosecutions, supported by proof of papers illegally seized for that purpose, in the defendant's house, by public officers acting professedly as such, without seeming to allow the State to profit by its own wrong.
One of the early cases in the United States on freedom of speech is State v. McKee (1900), concerning a statute which prohibited newspapers devoted principally to "pictures and stories of bloodshed, lust and crime." The Court reversed the conviction on the narrow ground that making such matters "a leading feature of the newspaper "was not the same thing as devoting the newspaper principally to such matters," but the broad free speech language of Justice Hamersley does somewhat anticipate the language of Justice Oliver Wendell Holmes two decades later. Hamersley stated:
The primary meaning of "liberty of the press," as understood at the time our early constitutions were framed, was freedom from any censorship of the press; from "all such previous restraints upon publications as had been practiced by other governments, and in early times here, to stifle the efforts of patriots towards enlightening their fellow subjects upon their rights and the duties of rulers." (Citations omitted.) But this fundamental guaranty goes further; it recognizes the free expression of opinion on matters of church or State as essential to the successful operation of free government, and it also recognizes the free expression of opinion on any subject as essential to a condition of civil liberty. The right to discuss public matters stands in part on the necessity of that right to the operation of a government by the people; but, with this exception, the right of every citizen to freely express his sentiments on all subjects stands on the broad principle which supports the equal right of all to exercise gifts of property and faculty in any pursuit in life, - in other words upon the essential principles of civil liberty as recognized by our Constitution.
As if these cases were not sufficient to establish the importance of the Baldwin-Hamersley era, Hamersley also wrote landmark opinions on the power of the Legislature to provide for summary contempt if a witness to an investigation does not answer a proper questions (Application of Clark, 1894) and on the Legislature's power to tax without running afoul of the equal protection clause (State v. Travelers, 1900). When lawyers and judges want to know about the extent of individual rights in Connecticut today, they would do well to research closely the cases decided when Hamersley and Baldwin were sitting.
Hamersley retired in 1908 and Baldwin in 1910. There followed a long dry period in which individual constitutional rights received little attention from the state courts except for an occasional dissent. In State v. Castelli (1917), the defendant claimed he was not informed of his constitutional rights before he confessed. The majority paid little attention to this claim. Justice George Wheeler in his dissent anticipated the Miranda rule by almost fifty years when he said: "A statement made to a coroner by an accused under arrest, without a warning from him that he need not make it, cannot be held to be legally voluntary...
It was a violation of the rights guaranteed to Castelli by Article First of our Constitution." In State v. Sinchuk (1912), the defendant, an alien, was convicted of sedition for distributing disloyal, scurrilous or abusive matter concerning the United States government. The majority upheld the conviction that the free speech clause does not apply to aliens. The majority analogized to dictum in Jackson v. Bulloch (1837) that slaves were not parties to the social compact. The decision attracted a dissent, once again by Justice Wheeler, who would have followed Justice Holmes's "clear and present danger" test in Schenck v. United States (1919) and saw no proper analogy between aliens and slaves. The Connecticut Supreme Court of Errors showed similar lack of sensitivity for freedom of religion when it affirmed the conviction of Jehovah's Witnesses for distributing leaflets without local approval (State v. Cantwell, 1939). The Court devoted one paragraph to a cursory discussion of the important constitutional issues involved. The next year the United State Supreme Court reversed the decision in a landmark ruling concerning the First Amendment.
Connecticut is well known as the last state to abandon prohibiting contraceptives, the law being declared unconstitutional by the United States Supreme Court in 1965 in Griswold v. Connecticut. What is less well known is that the contraception statute just barely survived a previous test under the Connecticut Constitution. In State v. Nelson (1940), two doctors and a nurse were convicted for counseling a married woman in the use of contraceptives. The trial judge declared the statute unconstitutional, but the Supreme Court reversed on a 3-2 vote. This was just after the era when the United States Supreme Court was being attacked for its judicial activism, and Chief Justice Maltbie, who was a judicial conservative, wrote the majority opinion deferring to the opinion of the Legislature.
By the 1950s and 1960s, the state courts were almost totally eclipsed by the United States Supreme Court in the protection of individual constitutional rights. It was not until the 1970s that the tide turned. Chapter IX will discuss the turning of the tide.
Throughout the colonial era, each town had two votes in the General Assembly regardless of population. This was not a great injustice because people were fairly evenly spread out across the state. For example, while Windham County today has about 3% of the population in the State, in the colonial era Windham County had about 10%.
By the 1770s the capitol building in Hartford was getting filled up with legislators, so starting in 1780 with the incorporation of Watertown, the new towns were given only one vote regardless of population. Since new towns tended on average to be smaller than existing ones, this change did not cause great unjustice either. In 1800 towns ranged in population from 767 (Union) to 5,437 (Stonington). Only four towns (Bozrah, Sterling, Union and Wolcott) had a population of less than 1,000 and only six towns (Hartford, Middletown, New Haven, New London, Norwalk and Stamford) were over 4,400, so if both extremes are omitted the range is only about 4 to 1. Even the extreme towns are not greatly outside the range.
In 1818, the population disparities between the cities and the towns were not much worse. Delegates were chosen by town according to the number of representatives each town had in the General Assembly. With other issues claiming their more urgent attention, the Framers did not alter the existing system of electing Representatives very much. The Constitution continued the system of two votes for every town that already had two, and one vote for the rest. If a new town was later carved out of an old town, the new town would have one vote. The old town would continue to have two votes if that previously was the case, unless the town voluntarily gave up one vote. Incredibly enough, the latter actually occurred once, as Branford gave up one of its two votes when North Branford was created in 1831. Berlin also gave its two votes to New Britain (a gift of dubious constitutionality) and got only one when the latter was created in 1850.
The disparities in the House of Representative became more significant after 1840. New Haven's population grew from 5,000 in 1800 to 20,000 in 1850. Meanwhile Union's fell from 767 to 728. The disparities were caused not only by the increase in city population, but also by the liberalization of the franchise which tended to create more voters in the cities. In 1845, the minimal property qualification in the Constitution was entirely eliminated, and the Civil War eliminated the racial qualification. These were to some extent offset by the amendment in 1855 adding the ability to read as a qualification, and the amendment in 1897 adding the ability to read English as a qualification. In any event, the cities continued to grow and constitutional changes in representation were periodically demanded and ignored during the mid-1800s. In 1871, an association was formed to reform the Constitution and a resolution calling for a constitutional convention was unsuccessfully introduced in the General Assembly in 1873. However, later in that decade two minor constitutional changes were approved. In 1874 every town with a population of 5,000 was automatically given two votes. This added another richly deserved vote for Bridgeport, Meriden and Derby. In 1876, any new town was prohibited from having any vote at all unless it had a population of 2,500. This had the practical effect of bringing to a halt the creation of new small towns. Before 1876 this practice had served to accentuate the population disparities in the House of Representatives. For example, Scotland, with a population of 500, was created from Windham and given its automatic one vote in 1857. About the same could be said concerning the creation of East Granby in 1858, Middlefield in 1866, and Beacon Falls in 1871, all with populations at the time of well under 1,000.
But these minor constitutional changes did not stem the tide of injustice. By the 1890s, the Connecticut system of representation was a national scandal. Not only was the House of Representatives grossly malapportioned, but the Senate was malapportioned too. The 1818 Constitution merely said that there were to be twelve Senators. For the next ten years they were all chosen at large, just as the members of the Council had been before 1818. In 1828 the Constitution was amended to divide the State into Senatorial districts and to increase the number of Senators from twelve to a larger number, set by the Legislature in 1831 at 21. Nothing in the Constitution required that the districts be set up according to population. While some general attempt was initially made to do so, district lines tended to become fossilized so that by the 1890s, even with the addition of three new districts in 1881, the smallest Senatorial district had one-tenth the population of the largest one.
The disparities in the Senate were nothing compared to the disparities in the House. In 1900 the population of New Haven, which had two votes, was 108,000; the population of Union, which also had two votes, was 428. Nor were these exceptional cases. Bridgeport, Hartford, New Haven and Waterbury all had a population over 50,000; no less than 44 towns had a population under 1,000, and seven of these were under 500. Indeed Union was not even the extreme; the population of Andover was 385 and Marlborough was 322, although Andover and Marlborough had "only" one vote. In short, 44 towns with a total population of about 30,000 could literally overwhelm the four larges cities with a total population of about 300,000. It is such injustices that revolutions are made of.
In 1901 Governor George McLean, a resident of a relatively small town (Simsbury), called on the General Assembly to do something about the injustice in representation. As usual, it did nothing, so Governor McLean called for a constitutional convention. The General Assembly did consent to putting the question to the voters, with the proviso that each town - from Union to New Haven - have one vote in such convention. The voters approved almost 2-1 the calling of a convention, which accordingly convened on July 1, 1902, with many of the most illustrious citizens of the state - former Governor Waller, Attorney Marcus Holcomb, Attorney General Charles Phelps, newspaper editor Charles Clark of Hartford and Norris Osborn of New Haven, and various prominent manufacturers, such as Frank Cheney of Manchester - in attendance.
Chief Justice Charles Andrews, who had just retired, was chosen President and the convention proceeded to consider its one principal task: reforming the method of representation in the General Assembly. The convention spent five months on the task and produced a mouse. The Senate was to consist of 45 districts of as nearly equal population as possible. This was a definite improvement. But the House of Representatives was to consist as follows: towns under 2,000, one vote; town of 2,000, but under 50,000, two votes; towns of 50,000 but under 100,000, three votes; and towns of 100,000 or more, four votes plus one for each additional 50,000.
The proposed constitution was put to the voters in June 1902. Less interest in the subject could hardly be imagined. While 74,062 people voted in 1901 when the issue was whether to call the convention, only 31,611 voted on its ratification. The cities were hostile because of the minimal changes. The rural towns were hostile because any changes were made. Over two-thirds of those voting rejected the proposed constitution.
So the problem continued to fester during the twentieth century. The Senate was redistricted in 1903, at which time the disparities were almost eliminated. But it was not significantly redistricted thereafter (except to benefit Stamford and Greenwich in 1941) until after the Constitution of 1965. So the disparities grew to 4½ to 1 by 1930 and 8½ to 1 by 1960. Meanwhile, there was no significant change in the law concerning the House of Representatives. In the 1950s, reminiscent of the 1870s, prominent citizens called once again for constitutional reform, but to no avail. As often is the case in American democracy, the only non-democratic branch of government - the judiciary - had to be called upon to rescue our democratic system. In Baker v. Carr (1962) the United State Supreme Court entered the political thicket and in Reynolds v. Sims (1964) held that one man is entitled to one vote. Trees and acres and custom have no vote. The principles of that case obviously applied to Connecticut, and in Butterworth v. Dempsey (1964) the federal courts so held.
A constitutional convention was accordingly called in 1965, presided over by retired Chief Justice Raymond E. Baldwin (a distant relative of Justice Simeon E. Baldwin). Its principal purpose, like the one in 1902, was to reapportion the General Assembly; unlike the earlier convention, in 1965 the delegates and the citizens had no choice. The delegates were there because they had to be there; if they strayed from very narrow parameters, the federal courts would simply take over the whole business. The delegates did come up with a plan for reapportionment, but when it came up for its first serious test in 1972 after the decennial census of 1970 was announced, the political process failed again, and the whole problem ended up being decided by three state court judges and ultimately by the Connecticut Supreme Court in Miller v. Schaffer (1972) and the United States Supreme Court in Gaffney v. Cummings (1973).
So this is the story of the rotten boroughs -Connecticut style. A more disgraceful performance by Connecticut legislators from 1818 through 1972 can hardly be imagined. One likes to think that Connecticut constitutional history is a worthy subject for veneration, but in this one area it is entitled to nothing but outrage.
So except for reapportionment, Connecticut under the 1965 Constitution hardly blinked an eyelash in changing from Connecticut under the 1818 Constitution. But change was soon to come, and from an unsuspected direction. As noted in Chapter VII, the Connecticut courts did not distinguish themselves from the 1910s through the 1960s in their defense of individual liberties. This condition continued through the early 1970s. One of the perfunctory additions to the 1965 Constitution was the catalyst for change. That addition was the Education Clause.
For many decades, Connecticut had a system of funding public education about as inequitable as its system of representation. Rich towns like Greenwich received the same small flat grant per student from the state as poor towns like Sterling. By the early 1970s, the Connecticut finance system was a scandal, but the Legislature did nothing significant. Governor Meskill appointed a distinguished commission made up of solid non-radicals and it recommended reform. Still the Legislature did nothing.
In 1972, the United State Supreme Court said in San Antonio Independent School District v. Rodriguez that the federal courts could do nothing about the subject because education is not mentioned in the federal constitution. Four-year-old Barnaby Horton of Canton realized that the Connecticut Constitution was different, so he brought suit against Governor Meskill in 1973 to force a change in the system. In late 1974 Superior Court Judge Jay Rubinow declared the school finance system unconstitutional under the Connecticut Constitution, but the state's only response was to appeal. In 1977 by a 4-1 vote the Connecticut Supreme Court in Horton v. Meskill agreed with Judge Rubinow's decision, Chief Justice Charles House writing the majority opinion. The Legislature then met in 1979 and completely overhauled the finance system.
From a state constitutional perspective, what is important about Horton v. Meskill is not so much that the school finance system was reformed, but that the push for reform came from an unexpected source: the state courts. Not only that, there was hardly a murmur of criticism from the Legislature concerning the Court's decision.
Since the Horton v. Meskill decision in 1977, the Connecticut Supreme Court has been a continual source of important decisions concerning individual constitutional rights. At a time when the United States Supreme Court is deferring more to the states, the Connecticut Supreme Court more and more is the place where the action is.
If Horton v. Meskill signaled the turning of the constitutional tide, the surging of that tide was due largely to the appointments about that time of John A. Speziale and Ellen Ash Peters to the Supreme Court. Speziale, a Superior Court judge, was strong in leadership; Peters, a Yale law professor, was strong in intellect. In State v. Washington (1980), Speziale apparently convinced the Supreme Court to reconsider its original narrow ruling in the case and issue a broad ruling that jurors were on no account to discuss the case among themselves until the trial judge had explained the law to them after all the evidence was presented. Speziale suddenly stepped down as Chief Justice in 1984 and was replaced by Peters. Her intellectual foil has been the more conservative Justice David Shea, who often agrees with her on constitutional issues but just as often does not. When they do not, one is reminded of the great intellectual battles between Hamersley and Baldwin in the 1890s.
Shea narrowly won the two most important battles with Peters. Cologne v. Westfarms Associates (1984) concerned the free speech rights of a women's rights group at a large private shopping mall. A similar case had been lost under the U.S. Constitution, so the issue here was whether the free speech provisions of the Connecticut Constitution provided greater rights. Shea said no because the primary purpose of the Bill of Rights was "the protection of individual liberties against infringement by government." He went on to criticize the activist school of jurisprudence as follows: "this court has never viewed constitutional language as newly descended from the firmament like fresh fallen snow upon which jurists may trace out their individual notions of public policy uninhibited by the history which attended the adoption of the particular phraseology at issue and the intention of its authors." Peters responded in dissent that the Connecticut free speech clause says nothing about action by the government. Another Shea vs. Peters decision is Pellegrino v. O'Neill (1984), in which Shea for the majority refused to consider whether excessive court delays in civil cases were unconstitutional.
Other than Cologne and Pellegrino, Peters and Shea have often agreed in the expansion of individual liberties. In Gaines v. Manson (1984), the Court declared excessive court delays in criminal cases unconstitutional; in Lavertue v. Niman (1986), the Court required the State to appoint a lawyer to defend a paternity action against an indigent defendant. Other judges have joined in expanding the Bill of Rights. In State v. Kimbro (1985), Justice Arthur Healey interpreted the Search and Seizure Clause more broadly than the United States Supreme Court had recently done concerning the U.S. Constitution. Shea and one other justice dissented. In Doe v. Maher (1986) a trial judge, Robert Berdon, declared the anti-abortion funding statute unconstitutional under the Connecticut Constitution although it would have passed muster under the U.S. Constitution. The state did not appeal, so the result stands as the final decision in the case. A recent important case is State v. Jarzbek (1987), in which Peters for the majority apparently construed the state Confrontation Clause broadly so that, with narrow exceptions, a victim cannot avoid seeing the defendant while a victim testifies. Shea once again dissented. Just this Summer Justice Healey in Builders Service Corporation v. Planning & Zoning Commission (1988), for a 3-2 majority (Shea again dissenting) struck down a restrictive zoning ordinance concerning the size of houses.
While the decision technically was based on a statute, the reasoning surely is based on the same constitutional philosophy as the cases just cited.
Whichever way the Connecticut Supreme Court goes in cases involving individual constitutional rights, there is no question that the Court today takes them seriously. There are many issues waiting to be resolved in that Court. The contours of the state equal rights amendment is worthy of testing, especially in light of the distinguished judicial history going back to In re Hall in 1882. The recent education report concerning de facto segregated schools is another possible area for probing the meaning of the Connecticut Constitution. As the United States Supreme Court retrenches in the area of criminal rights, the State Supreme Court will more and more be called upon to fill in the void.
So in 1988, as we review Connecticut constitutional history, we see a strong but no longer predominant General Assembly, a much stronger Governor than in the past, and a strong and vital judiciary. There are truly three separate but equal branches of government in Connecticut today.
Wesley W. Horton