USA > Connecticut > Tercentenary pamphlet series, v. 1 Connecticut and the British Government > Part 1
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org.
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43
حـ
-
-
.
-
14 4
L
T
M
.
-
H
-
-
+
.
٠٠
Gc 974.6 C768t v.1 298061
PUBLIC LIBRARY FORT WAYNE & ALLEN CO., IND.
ANNEX
GENEALO. COLLECTION
ALLEN COUNTY PUBLIC LIBRARY 3 1833 01149 2961
ANNEX
3
-
974.6 5054 Po.1
Connecticut, History
4733
TERCENTENARY COMMISSION OF THE STATE OF CONNECTICUT
QUI
SUSTINET
TRANSTULIT
COMMITTEE ON
HISTORICAL PUBLICATIONS
Connecticut and the British Government
PUBLISHED FOR THE TERCENTENARY COMMISSION BY THE YALE UNIVERSITY PRESS
1933
376 Il Blue K.l
4
TERCENTENARY COMMISSION OF THE STATE OF CONNECTICUT
COMMITTEE ON HISTORICAL PUBLICATIONS
Connecticut 298061
and the British Government*
CHARLES M. ANDREWS
I T is a well known fact that during our colonial period Connecticut and Rhode Island were endowed by their royal charters with larger powers of self- government and greater freedom from royal control than were any of the British colonies extending from Newfoundland to Barbadoes. In the British scheme of colonial management they occupied a position so anoma- lous and exceptional as to place them in a measure almost outside the category of colonies, according to the con- temporary definition of that term. Whereas to the Eng- lish official and merchant a colony was a dependency, the value of which varied according to the extent of its con- tribution to the prosperity of the mother country, these two colonies played practically no part in advancing the welfare of England; and, except as occasional incidents brought them to the attention of the Privy Council or the Board of Trade, they remained, particularly for the first half of the eighteenth century, small and relatively
* Reprinted from Fane's Reports on the Laws of Connecticut. Acorn Club Publications, 1915.
I
insignificant communities, largely unknown to the au- thorities at home and in no way serving, according to the phraseology of the day, as "a Dutiful Colony, attentive to the Interest and Welfare of the Mother Country." The Board of Trade described the situation accurately enough when it said in 1730, "We seldom hear from them except when they stand in need of the countenance, the protection, or the assistance of the Crown." In 1740, the board added, "The Crown has no revenue in this Govern- ment [Connecticut], nor is it known how they support their Government," and again in 1741, "they think themselves by their charters little dependent on the Crown, and seldom pay obedience to royal orders."
Why such a situation was allowed to continue, in the face of frequent protests by the Board of Trade and others concerned with colonial management, is an inter- esting question in the history of English party politics. The immunity from outside control which the colonies claimed under the terms of their charters was contrary to the principles of colonial relationship accepted at the time, and led to many attempts, before and after 1700, to bring all the charter governments under the immediate authority of the crown. Connecticut and others deemed these attempts illegal and oppressive, but the authorities at home, with a purpose in view that was entirely reason- able and legitimate, considered them necessary for the protection of the colonies against the French, and for the advancement of England's commercial welfare. Con- necticut was charged with exercising many functions that lay beyond her corporate powers :- trying cases of robbery and murder, making capital laws, and punishing with death-none of which acts were authorized by her charter. She was likewise charged with performing many things derogatory to the royal rights and injurious to the
2
prosperity of British subjects. In some cases the charges were true. Connecticut had refused to unite with the other northern colonies under a common military head in time of war, had denied the authority of the vice ad- miralty courts set up for the prevention of illegal trade, had declared that she would not recognize the right of appeal from her courts to the King in Council, and had passed laws that were contrary to those of England. But in many other cases the charges were either baseless or exaggerated. Complaints from English officials in Amer- ica of connivance with piracy and illegal trade must be taken very cautiously, and the grievances of disaffected colonists must not be accepted at their face value. Still there was some truth in the latter's contention that the government of the colony was in form a republic, which it was never designed to be and had no right to be, and that in operation it was arbitrary and oppressive, hostile to monarchy and church alike, separated from the crown as well as the church of England, and recognizing neither the authority nor the laws of the mother country. The constant iteration of these charges inevitably drew the attention of the Board of Trade and the Privy Council to the conditions in Connecticut and elsewhere, and led to the attempt, many times repeated, to pass an act of parliament depriving all the proprietary and corporate colonies of their charters, thus altering their status to that of the royal colonies.
But all these and other attempts failed. The "ill use [which the proprietary and corporate colonies made] of the powers entrusted to them by their charters and the Independency which [they] aspired to" did not prevail with parliament as a sufficient argument, owing in large part to the powerful and growing Whig influence, which viewed the proposed measures as but Tory instruments
3
designed to enslave New England. Connecticut had good friends at court. Fitz John Winthrop had gone over in 1693 to plead the cause of the colony, and had performed his work so well that in 1697 the Board of Trade wrote that he had "diligently solicited all things that concern the colony of Connecticut." He was succeeded by Sir Henry Ashurst (agent, 1698-1710), friend and son of a friend to New England, and he by Jeremiah Dummer (agent, 1710-1730), whose Defence of the New England Charters, first published in 1721, presented effective argu- ments in the colonies' behalf. Dummer was followed by Francis Wilks (agent, 1730-1742), an astute London merchant, who continued to defend the colony against the efforts that were made as late as 1740 to take away the charter or to join Connecticut and Rhode Island into a single province under a royal governor. During the peri- od of Dummer's agency attempts were made also to per- suade the colonies individually to surrender their charters of their own accord. But these attempts likewise failed, except in the case of the Jerseys, the Carolinas, and the Bahamas. The reply from Rhode Island, written by Gov. Cranston, and that from Connecticut, written by Gov. Saltonstall, are supplemental to Dummer's Defence and present with vigor and shrewdness the point of view of the colonies.
Though Connecticut continued to remain outside the range of direct royal control, the colony was frequently brought into relations with the government in England. In 1701, the attorney-general decided that though there was "no reservation of appeals to his Majesty in the charter granted to Connecticut," yet an appeal did lie to the King in Council "as a right inherent in the Crown," and in case the colony refused to allow an appeal, the Council could proceed "to hear the merits of the cause
4
upon an appeal, whether that appeal be allowed or ad- mitted there or not." That the Council acted on this decision we know well. In 1702, the secretary of state di- rected the colony to enter into a regular correspondence with his office, giving him "such accounts from time to time of what occurs" in the colony, "as you shall think fit to impart to me for Her Majesty's service"; but in this particular the secretary's instructions were better hon- ored in the breach than in the observance. Except for the answers to queries, few letters were written by the governors to the secretary of state until after 1762, and even then the number was not large or the occasions fre- quent. In all that concerned trade and the observance of the Navigation Acts, the colony was always open to the royal commands, and was included among those to which were sent any instructions deemed necessary in order to secure the proper execution of the trade laws. Though the election of the governor of Connecticut did not have to be confirmed by the crown, each governor took the oath required by the acts of trade, in the presence of the Gen- eral Assembly, and after 1722 was expected to give bond for the execution of the acts, though in fact he rarely did so. Circular instructions concerning such matters as piracy, ships' passes, prayers for the royal family, Green- wich Hospital dues, royal and admiralty rights, duties on negroes and felons imported, relations with the enemy in time of war, the Scottish Darien project, the post office, coinage, letters of marque, and the issue of bills of credit were sent to Connecticut and generally obeyed by that colony. Queries were sent over by the Board of Trade and answered by the governor, and the authority of the King in Council was always admitted in all that concerned boundary controversies, the title to the Narragansett country, and claims to the Mohegan lands. The colony
5
recognized the right of the Treasury Board and the Com- missioners of Customs to appoint customs officials for the collecting of the plantation duty, who in the signing of clearances were to join concurrently with the naval of- ficers named for the various posts by the governor. There is reason to believe that these officials, following the royal instructions of 1698, transmitted to the customs commissioners quarterly returns of seamen and shipping, though all such lists are now lost. The colony was ready also, in a lukewarm way, to aid the surveyor general of the woods and his deputies, whose business it was to guard the trees suitable for masts for the royal navy, though fortunately, perhaps, it was not often called upon to do so. In general, it expressed itself in terms of loyal obedience to the royal will, whenever it had occasion to write to the secretary of state or the Board of Trade, and it exacted of the freemen of the colony an oath to be true and faithful to their lawful sovereign, the King or Queen of England.
One of the most important obligations resting upon the royal colonies was the submission of their laws to the King in Council for confirmation or disallowance. This obligation rested also upon the colonies of Pennsylvania and Massachusetts, by their charters of 1681 and 1691. But Connecticut, Rhode Island, and Maryland (except for the period of royal control) were exempt from this requirement and no systematic attempt was ever made to bind them to it. The crown lawyers said that the King had no power to disallow any act of these colonies, not contrary to the law of England, and that as long as the charters remained intact the laws of these colonies could not be interfered with.
The matter first came into prominence in 1696, when in the instructions to the newly commissioned Board of
6
Trade, a clause was inserted requiring that body "to examine into and weigh the acts of the several planta- tions," an injunction which recognized no exceptions among the colonies as far as immunity was concerned. When, therefore, the board settled down to work and discovered that there were no laws of Connecticut or Rhode Island "amongst the rest that are in our custody," it took the matter in hand and on December 26, 1697, decided to instruct these colonies as well as the others to send over copies of their acts and laws, even though they were not obliged to do so by their charters. Rhode Island replied in 1699, sending over not an "authentick copy" but only an abstract, and from that time forward refrained entirely from further obedience to the royal command. But Connecticut proved less obstinate. The letter of the board, dated February 23, 1698, bade the colony transmit to it "authentick copies of all the acts or laws of that colony, with all possible diligence." This letter, which was addressed to the Governor and Com- pany, was answered on July I by Winthrop, who had re- turned to the colony in 1697 and had been elected gov- ernor the May before. He sent at once a copy of the colony's act against pirates and promised to recommend to the assembly at its next session the request of the board, but inasmuch as a delay of four months ensued before the laws were actually despatched, the latter wrote again repeating its request that copies of the laws "in authentick form" be sent "without delay." But before this letter reached Connecticut, Winthrop had written, October 27, 1698, forwarding with the letter a copy of the printed law book of 1673.
The Gen"] Assembly [he wrote] of his Majesty's Collony of Connecticut (by their Committee) at their receipt of yor Lordships letter of Feb. 23, 1697/8 were under consideration
7
for reviseing the Lawes of this Collony in order to some Emen- dations and Enlargements as should be found necessary for farther benefit and service to his Majts Subjects; but could not possibly digest them for your Lordships perusall in tyme to send by the shipe now goeing from Boston; The Gen11 Assembly doe therefore in most humble regard to your Lord- ships Comandes herewith transmit to your Lordships favour- able Opinion the present printed Laws by which his Majts Subjects are at this time Governed, and allsoe the transcript of other Necessary and Locall Lawes Suitable to the constitu- tion of the Affaires of this Wilderness."
This volume of the laws, which may now be seen in the Public Record Office, is that of 1673, and it is accompa- nied with later laws to date copied in manuscript. It was presented at the meeting of the board, April 13, 1699, and was acknowledged in a letter from the board, dated April 24. The latter, after expressing its satisfaction with the action of the colony, said that it expected the colony to transmit its laws in the future "without delay and in authentic form under the public seal, with the attestation of the governor and other proper officers.
The revision of the laws, to which Winthrop referred, was that ordered by the General Assembly in October, 1696, but not completed and issued until 1702. There is in the Public Record Office a copy of this book, and also copies of printed sessional acts from May 20, 1709, to May 23, 1712. The first was sent over in 1703, not by Connecticut, but by Gov. Cornbury of New York, who in his letter of June 30 of that year said, "I take the liberty to send your Lordshipps the Laws of Connecticot and with them a book writ by one Mr. Buckley, who is an inhabitant of Connecticott, by that you will be in- formed of the methods of proceeding in that Colony." Who sent over the sessional acts I cannot discover. There is no reference to them either in the New York or in the
8
Connecticut correspondence, and the acts bear no en- dorsements, such as were invariably made on documents and papers received by the board at this time. That the colony intended to send over more laws at the earliest opportunity is evident. In an answer to queries, dated January 24, 1709, appears the following clause, "We are preparing an Exact Body of our Laws to send yr Lord- ships; the low circumstances of the Colony has kept us without a press, so that We have been necessitated to make use of manuscripts, for a considerable Number of our Laws; But are now endeavouring to put them all in print; which We hope will be accomplished in a Short time; And shall take the most speedy Care to transmitt them, according to yr Lordships Directions." The press thus referred to was that of Thomas Short of New Lon- don, and the sessional acts of May 20 and June II, 1709, were the first laws printed in Connecticut. On August 8, 1710, Gov. Saltonstall wrote from New Haven, "As to our Laws which we formerly acquainted your Lordships were preparing for the press, the Extraordinary Occa- sions of the Warr the two Last Summers in obedience to Her Majesties Commands, has prevented our going through with that work, but we are now Setting upon it, and hope to have it in a Good forwardness by the next Spring; And I shall be very carefull that your Lordships have a copie of them as Soon as they come out of the Press." In a letter from Popple to Saltonstall, of Febru- ary 19, 17II, acknowledging this letter (and another of July 3, 1710), he writes, "They shall expect a Collection of the Laws of Connecticut as promised. In sending which Laws, you will do well, if there be any amongst them that are of a particular nature, to explain to their Lordships the Reasons for passing the same, unless such Reasons be express'd in the Preamble of the Act." But still the
9
laws were not ready, and nearly two years later, May, 1712, the General Assembly resolved that "a compleat body of the laws of this government be sent home to the Right Honble the Lords of Trade, and that the Governor be requested to do it."
There is ample evidence, therefore, to show that both the General Assembly and Gov. Saltonstall planned to send over a copy of the new book of laws, which as it happened, did not appear until 1715. In point of fact, however, the book was never sent, or, if sent, never reached the Plantation Office. But Saltonstall may have sent over the series of sessional acts, ten in number, which were issued from 1709 to 1712, supplemental to the book of laws of 1702 and its continuation, also printed by Thomas Short, containing the acts from 1702 to 1708. He certainly had not done so before Popple's letter of February 19, 17II, was written, and it would appear strange that he should send the laws passed after 1708 and not those of the earlier dates contained in the con- tinuation. There is, however, nothing to prove that he ever sent over any laws at all, and against his doing so must be placed the serious objection that no reference to these sessional acts is to be found anywhere in the Board of Trade papers. So particular was the secretary of the board at this time to record and acknowledge all letters and enclosures received that failure to find such entries is presumptive evidence against the receipt of the acts accompanying any letter sent to the board. Yet these sessional acts are today among the Connecticut laws that the board had in its possession, and how they got there is something of a mystery. That the board itself and its secretary were unaware of their presence among the papers of the Plantation Office later letters will show, and the absence of all endorsements upon them seems to
IO
A
indicate that they found their way into the office through some unofficial channel.
We are compelled to believe, therefore, that from 1698 to 1731 the colony sent over no additional copies of its laws. During the later years of this period, the affairs of Connecticut were brought prominently before the home government by the controversy over the intestacy law, which was disallowed by the King in Council, February 15, 1728. When drafting its representation to the King on the subject, the Board of Trade discovered that "The people of Connecticut have hitherto affected so entire an Independency of Great Britain that they have not for many years transmitted any of their laws for His Majes- ty's consideration." Already had the board written to Connecticut, June 30, 1728, reminding the colony to send over "a compleat Collection of the Laws, which has been so often promised some years ago by several governors," and now it wrote to Gov. Talcott bidding him "transmit authentic copies of the Laws passed," while the secre- tary, Alured Popple, added in a postscript, "I find by a letter from your Predecessor Mr. Saltonstall dated so long ago as the 8th of August 1710, he promised the then Lords Commissioners a copy of your laws as soon as they should come out of the Press, tho' it has not been received here." At the same time the board wrote to Gov. Montgomerie of New York, June 30, 1731, saying, "These proprietary governments have long since been required to transmit hither Authentic copies of their Laws, which their former Govrs have promised some years ago, though such copies have not been received here," and it requested Montgomerie "to secure a set as soon as possible." But Montgomerie died before the letter reached New York, and the acting governor, Rip Van Dam, president of the council, sent the request to Con-
II
necticut. On October 14, the assembly of that colony appointed a committee to consider the question. The committee reported favorably, stating that this was the first intimation the assembly had received that Gov. Saltonstall had not sent the law book to England, and. adding, "We Submit it to the wisdom of this Assembly, whether in poynt of prudence, it may not be best by Some meet persons Strictly to view our Lawes, in order to make alterations or adetions, as this assembly Shall think proper."
On November 4, Talcott wrote to the board as follows:
"Tis a pleasure to me to be informed by Mr. Popple's Letter of May 31st past that your Lordships have received my Letter with our Answers to your Queries; and I am Concerned that the Book of our Laws from Govr Saltonstall came not safe to your hands; I remember I heard his Honour say he was about Sending Over a Sett of our Laws but whether he sent them or whether they Miscarried I can't tell.
By Mr. Popple's Letter of June Ioth last he Informs me that your Lordships desire that I should send you our Laws that affect the Trade Navigation or Manufactures of Great Britain; in Answer thereunto and that I may as much as in me Lyes make good Govern" Saltonstall promiss, I have here- with sent you the whole Sett of Our Laws by which your Lord- ships will Se that our Laws do not Incumber the Commerce Navigation or Trade.
Your Lordships will be best Informed of the Reason Neces- sity and Usefulness of our Laws by Considering the State and Circumstances of our Countrey so very many ways differing from that of England.
The Book of Laws I send you have been Sometime out of the press Since which some Laws have been altered and some Re- peal'd which notwithstanding I am forced to send with the Rest unless I should print the Book anew for this purpose which I fear would Delay the time beyond your Lordships Expectation.
In acknowledging the receipt of this volume, which
I2
was sent by way of Boston to the agent of the colony, Francis Wilks, for presentation to the board, the latter expressed regret that some of the laws had been altered since they were printed, and said that it would be im- possible for them "to make any judgment" of those sent without seeing "those also by which they were altered." The board requested Talcott to "transmit Transcripts of such Laws as shall be passed for the future." To this Talcott answered, calling attention to the fact that with the laws were bound up sessional acts, which indicated "what of our Laws are altered and Repeal'd."
The volume thus sent over for the inspection of the Board of Trade consisted of the Law Book of 1715 and all sessional acts passed from that time to and including the year 1731. It was sent November 4, 1731, and reached the Plantation Office in Whitehall, February 18, 1732. Two weeks later, on April 5, it was despatched to the board's legal adviser, Francis Fane, with the injunction that he examine the laws and render an opinion "upon the said Acts, whether the same or any of them are re- pugnant to the Laws of this Kingdom." Fane was living at the time in St. James's, Westminster, but a short dis- tance from Whitehall, across the park. He completed his first report covering the whole of the 1702 text, as it appeared in the 1715 reprint, in a year and four months, submitting it to the board, August 10, 1733. The second report, containing comments on the reprinted sessional acts to and including part of those of October, 1706, was handed in April 1, 1734. The third, continuing his com- ments on the reprinted sessional acts to and including part of those of May, 1708, was completed December 2, 1734. The fourth, dealing with the same to and including part of those of June, 1709, was delivered May 17, 1735. The fifth, covering the same to and including part of those
I3
of May, 17II, was returned December 13, 1735. The sixth, commenting on the same to and including part of those of October, 1712, was sent in January 20, 1736. The seventh, beginning with the remaining acts of October, 1712, and continuing through those of October, I714, was returned December 22, 1737. The eighth, be- ginning with the acts of May, 1715, and extending through those of October, 1717, was delivered December 15, 1738, thus completing the original 1715 reprint and two years of sessional acts. The ninth and last, carrying the laws through the session of May, 1721, was sent to the board June 16, 1741. The remaining laws, covering the period from October, 1721, to October, 1731, num- bering 197 acts and 15 resolutions, and contained in 120 pages of text, were never dealt with at all. Fane was nine years in making his report and then did not complete it. In an era of procrastination in governmental business, there can hardly be found a more striking example of dilatory work than this. Yet Fane was an efficient man and a judicious and learned lawyer, but the task was a long one, covering altogether 584 acts and 18 resolutions, of which 387 acts and 3 resolutions are included in his reports. During this period he was called upon to ex- amine scores of laws from the other colonies, and to attend to his private law practice and his duties as a member of parliament. His reports were never presented, as far as we know, at the meetings of the board, and no action was ever taken, either of approval or disapproval, on the recommendations which they contained. The re- ports were, therefore, of no significance, as far as the colony was concerned, and are of interest to us today only as containing the opinion of an English lawyer upon the laws passed by the colony for its own governance.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.