USA > Connecticut > A history of Connecticut, its people and institutions, pt 1 > Part 7
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The government formed in 1639, was steady in its work- ing; at the first election on April 11, 1639, John Haynes was chosen governor; in a period of twenty years, Haynes was governor eight times and Edward Hopkins seven times. In 1657, John Winthrop, Jr., was chosen governor, and he
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AN HOLYCONNEXION, Or a trite AGREEMENT Between Jehovah's being a WALL of FI'REtobis People, and the GLORY in the midft thereof :"
Or a Word in Seafon to ftir upto a folemn Acknowledgement of the gracious Protection of God over his People; and cipecially to a Holy Care that the Prefence of God my yet be continued with us. -
As it was delivered in a.
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Preached at Hartford on Concalicut in . W. E. May 14. 16;4. being the Day of ELECI IOM there :
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CAMBRIDGE : Printed by Samuel Green. 1 6 7 4.
The Title-Page of the First Election Sermon Preached in Connecticut
This sermon was the first of the famous series of election sermons delivered to the General Assembly at the opening of the annual session. A copy is in the possession of the Connecticut State Library
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Forming the Government
held office for eighteen years. Early in the next century, Gurdon Saltonstall was governor for seventeen years.
The ecclesiastical excresence on the constitution, natural at the time, though contrary to the spirit of the document, remained to trouble the commonwealth until the political system came up to its own standard in 1818. The wisdom of Hooker is seen nowhere else more clearly than in the third proposition of the sermon that "they who have the power to appoint officers and magistrates, it is in their power also to set the bounds and limitations of the power and place unto which they call them." The government was a crea- tion of the people, and governor, legislature, and judges were to have a limited power, and that limiting element afterwards developed into the Supreme Court. This fea- ture of Hooker's sermon is probably the most important development of our political system. There had been democracies before, but the supremacy of the law, coming directly from the people, limiting the government created by the people, is original here, and is a principle which found expression in the Constitution of the United States, a fact which has led many admirers of the Connecticut system to declare that the former can be traced to the con- stitution of 1639. This is an alluring view, which is not now accepted by those who have examined the subject, though, no doubt, the Connecticut government had a decided influence at the convention of 1787, because of the presence there of Sherman, Ellsworth, and Johnson.
The fact that there was no sovereignty of the towns before 1639, enhances the glory of Connecticut as the birth- place of American democracy, and it is enough honor for this commonwealth to have been the first organized govern- ment to draft for itself an organic law, and first to build that law on the theory that the sovereignty of a state is in the people of the state.
It is not a gracious task to criticize so great an instru- ment as the famous "Constitution" of the colony, but the
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open suffrage provision was found in practice to be too doc- trinaire, and had to be changed in twenty years; the throw- ing off of all connection with English law made New England inferior to the South in the production of able lawyers, and the equality of representation in the towns has left a legacy which has retarded progress, and permits the injustice of a town of a hundred voters having as many representatives in the legislature as a city of a hundred thousand souls. Then, too, the refusal of the founders to grant larger power to the governor has led to an excessive development of the legislative factor, which in the judgment of many has proved a detriment to colony and state.
The question now arises as to the authorship of this remarkable document. An easy answer is the common one -Thomas Hooker-and we are not to lessen the glory of that great mind, but there was one other man, and only one, who had the training and the ability to fashion the Funda- mental Orders, and that was Roger Ludlow of Windsor. Ludlow came of a distinguished, liberty-loving family, a family of soldiers, lawyers, and statesmen. From 1547, to 1660, six Ludlows studied law in the Inner Temple, and Roger Ludlow, after two years at Balliol College, Oxford, became a student at the Inner Temple in 1612, and for the next period, until at forty he sailed for Massachusetts, he was engaged in legal training and research; mastering prin- ciples and precedents; becoming an expert in handling constitutional forms, thus commending himself to his critical associates as the one man to whom they could look to grasp and form the laws of the new state; to serve as magistrate and jurist, and to put into final shape the colo- nial statutes. Ludlow married Mary Endicott, a sister of the Massachusetts governor. He sailed in the spring of 1630, in the first ship of the fleet, and landing in May at Nantasket, he went to Dorchester with a group known as the Dorchester Company,-"a godly and religious people, many of them persons of note and figure, being dignified
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with ye title of master, which but few in those days were." When, in 1630, the famous charter of Massachusetts Bay was secured from King Charles, Ludlow was chosen an assistant by the stockholders in London, "that his counsel and judgment might aid in preserving order, and founding the social structure upon the surest basis." Among his associates were the Earl of Warwick, Lord Say and Sele, Winthrop, Vane, Mason, Underhill, and Wareham. To be chosen assistant in association with such men marks Ludlow as a man of superior ability and knowledge. His service in Massachusetts for five years as magistrate in the Great Charter Court and as deputy governor, brought him oppor- tunity for many important duties and to meet questions of the gravest concern, to which he brought all the resources of his powerful mind.
Remembering the situation at Boston Bay, the disposi- tion of Winthrop, Cotton, and the other leaders to keep the reins of government in the hands of the few, it is significant that when the struggle began between magistrates and commons, Ludlow, an assistant, stood with his associates, but when the freemen demanded a sight of the charter, and appointed deputies to advise the magistrates, Ludlow took his place with the people, and in 1634, was elected deputy governor, from which office he graduated to cast in his for- tunes with the settlers on the Connecticut. We need not repeat the story of diplomacy and force by which the Dutch were ousted, the Pilgrims checkmated, and the younger Winthrop led to abandon his claim to the upper Connecticut. We have seen that Ludlow was at the head of the Massa- chusetts commission to govern the colony for a year, was practically the first governor; when the Court assembled at the opening of the second year, May 1, 1637, Ludlow presided, and "offensive warr" against the Pequots was voted. He was in charge of the defenses about Windsor while the soldiers were absent; he was in the army at the Swamp Fight, and when the Fundamental Orders were
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adopted at Hartford January 14, 1639, who was the man who put into form that immortal instrument? Ludlow was a lawyer-the only one in the colony; he was trained in the best English schools; had served on the government of Massachusetts for four years; had drawn the main acts of the colonial government, and while Haynes, Wyllys, Web- ster, Mason, Goodwin, and Steele had part in the delibera- tions, we cannot refrain from the belief that Ludlow was the leading mind in framing the Fundamental Orders. This cannot be proven, for there is no record of the meetings, but it is a natural inference from the facts cited above, and from the fact that in 1646, it was ordered by the General Court that
Mr. Ludlowe is requested to take some paynes in drawing forth a body of Lawes for the government of this Commonwelth, and p'sent the same to the next Generall Court; and if he can provide a man for his occasions while he is imployed in the said searvice, he shall be paid at the country chardge.
While the three plantations on the Connecticut were forming their government, New Haven, Milford, and Guil- ford were laying their civic foundations with sermons and prayers. On reaching New Haven in 1638, the settlers first bound themselves by a "plantation covenant," similar to that of the Plymouth Pilgrims, making a temporary government, and thirteen months later, in the barn of Robert Newman, the civil and ecclesiastical foundations of. New Haven were laid. In 1643, the neighboring colonies of Milford and Guilford were admitted into the jurisdiction of the New Haven colony, and at that time a written consti- tution, consisting of certain "fundamental orders," appears upon the record. This differed from the constitution of Connecticut in that it insisted that none but church members could vote; the number disfranchised in New Haven was probably a majority; in Guilford nearly a half. It also guarded carefully the independence of the churches, and
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established various courts whose powers were carefully prescribed. At New Haven as at Hartford, the settlers felt that they were not founding colonies but states. During many of the earliest years, the records of New Haven contain no recognition of the English king. This was natural, for the twelve years from 1628, to 1640, were a period when the prospects of liberty in England, under Laud and Strafford, were at the darkest; when freedom existed only in a memory or a hope. During those years, when the realm was governed, not by Acts of Parliament, but by Orders in Council, twenty thousand Puritans emigrated to New England; and it is not strange that a knowledge of the condition in England should have colored the constitutions forming here.
On March 14, 1661, the General Court of Connecticut voted to acknowledge allegiance to Charles II., with request for a charter, and in August, John Winthrop, Jr., sailed in quest of the boon. He was to ask for the renewal of the patent, or for a charter. There was a happy combination of influences working for the good of the colony; Lord Say and Sele was interested in Winthrop and in the community he represented, and the scientific tastes and scholarly bearing of Winthrop commended him to the English government, so that it came to pass that a charter was obtained more democratic than was ever given by another king, by which was constituted the Governor and Company of the English Colony of Connecticut in New England in America. The boundaries of the territory were: on the east,
the Narragansett River, commonly called Narragansett Bay, where the said river falleth into the sea; on the north, the line of the Massachusetts Plantation; on the south, the sea; and, in longitude, as the line of the Massachusetts Colony runneth from east to the west, that is to say, from the said Narragansett Bay on the cast, to the South Sea on the west part, with the islands thereto adjoining.
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These boundaries included the whole of New Haven colony, as well as the territory of Rhode Island.
The government was to be administered by a governor, a deputy governor, twelve assistants, and a house of deputies, which was to consist of two members from each town, to be elected annually by the freemen of the colony. The only limiting clause was that the local legislature could not make laws contrary to those of the realm of England, but this had little weight, for there was a method in the English govern- ment of annulling laws passed by colonial legislatures. It was an extraordinary document to be issued while Lord Clarendon was minister, and one reason for its quality may have been the desire to punish New Haven for harboring the regicides. The king issued a sign manual bearing "Charles R," Febru- ary 28, 1662, and the charter passed the great seal, as is indicated by the chancellor's "recipe," April 23. The arrival of the charter in New England four months later, created a decided sensation. Great was the joy; it was read in Hartford, October 9, committed to Wyllys, Talcott, and Allen; the General Court declaring in force all the laws and orders of the colony, making a declaration of the same to all civil and military officers. Westchester, lying within Dutch territory, received notice of the claims of Connecticut, and the dwellers at Mystic and Stonington were notified that they were within Connecticut. Border towns that had been allied with New Haven waited on the legislature of Connecticut and asked admission to its citizen- ship. A committee of two magistrates and two ministers was appointed to go to New Haven, to say they hoped that a happy union might be formed, and the reply was that the New Haven colony preferred to hear the particulars from the lips of Winthrop. Meanwhile meetings of the freemen were held, and protests made against the union which was thrust upon them, and votes were taken in the towns to defer action until Winthrop's home-coming.
Connecticut made no response to the remonstrance of
The Charter of 1662
This is from a photograph of the charter issued to the colony in 1662, by Charles II. For a short time it was secreted in the famous Charter Oak. At the right is the Constitution of 1818. Above is Stuart's Washington. The group is in the south end of Memorial Hall Connecticut State Library
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New Haven until some four months later, when it sent a committee of four magistrates to New Haven to settle the matter of union and incorporation. They were instructed to consent to no concessions and to make no compromises. New Haven, at a meeting of its General Court, resolved to recognize no changes of the government, and to go on as usual. In the face of the advice of Winthrop in the com- munication he sent to Deputy Governor Mason of Connecti- cut, that colony proceeded to appoint magistrates for the New Haven towns, and invited from those towns deputies to the Connecticut legislature. Since New Haven declined to treat with Connecticut, that colony addressed the several towns of New Haven. At the meeting of the federal com- missioners in Boston in 1663, the question of union was the most important matter of consideration. New Haven presented its grievance over the usurpation of Connecticut, and the representatives of Massachusetts and Plymouth gave it as their opinion that
the colony of New Haven might not by any act of violence, have their liberty of jurisdiction infringed by any other of the United Colonies without breach of the Articles of Confederation and that, wherein the act of power had been exerted against their authority, the same ought to be recalled, and their power reserved to them entire, until such time as in an orderly way it should be otherwise disposed.
Meanwhile the New Haven alliance tended to disin- tegrate; the plantation convenant excluded forty per cent. of the population from citizenship, and this element was friendly to a change. It was not easy for the New Haven confederacy to pay the expenses of the government after all but three towns seceded, but the order received from England at that time, requiring the observance of the navi- gation laws, was addressed to the governor and assistants of New Haven, and that was considered by the authorities as a virtual recognition of their separate capacity, and they made it the basis of a claim for taxes on the seceding towns.
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To bring the intolerable situation to a close, the General Court of New Haven prepared a paper to transmit to the Connecticut authorities, entitled New Haven's Case Stated, wherein the full history was set forth, and the Connecticut authorities were requested no longer to force a union. To this plea Connecticut made no reply, and the contest con- tinued until the summer of 1664. The leading men of Massachusetts advised New Haven to yield, saying that the Case Stated justified its position and it could yield with dignity, and this advice was followed after a few concessions had been made. The movement toward union was not retarded by the fact that Charles II. granted to his brother, the Duke of York, March 12, 1664, New Netherlands and all Long Island "and the land from the west side of Connecticut to the East side of Delaware Bay." Royal authority had disposed of New Haven without her knowledge. Between the two powerful claimants, Connecticut and the Duke of York, there was no hesitation about the decision. It was better to be connected with a people of their own faith than become the property of a prince of the House of Stuart. When Colonel Richard Nicolls came with three ships of war and troops to secure possession from the Dutch, the charter of Winthrop was a welcome resource. Winthrop preferred to yield Long Island rather than the west, and the boundary on the west was declared to be "the creek or river called Mamoronock, which is reputed to be about twelve miles to the east of Westchester, and a line drawn from the east part or side, where the fresh water falls into the salt at high water mark, northwest to the line of Massachusetts." Thus Connecticut kept substantially all she had formerly claimed on the mainland in return for the loss of Long Island. By that time New Haven saw that union could no longer be delayed, and on December 13, 1664, she held her last General Court and adopted resolutions dissolving the colony. Davenport was bitterly disappointed, and said the independence of his colony was "miserably lost."
CHAPTER VII ..
COURTS AND LAWS
A T first the legislative and judicial powers of the colony were vested in the General Court, whose authority came, as we have seen in the previous chapter, from the Massachu- setts legislature. In accordance with the commission from Boston, a "Corte" was organized, consisting of magistrates from Hartford, Windsor, and Wethersfield on April 26, 1636, at Hartford, and the following men were present: Roger Ludlow, John Steele, William Swain, William Phelps, William Westwood, and William Ward, and this Court had power to make and repeal laws, grant levies, admit freemen, dispose of unappropriated lands, and discipline any one, even a court magistrate. There was no check upon its power, except the provision that its acts must not be con- trary to the laws of England, and within such lines it had absolute power over life, liberty, and property. As we have seen, it gave little thought to the common law of England, but Roger Ludlow was there, a man thoroughly trained in English precedents and the methods of the courts of the . mother country; and he was probably the most powerful influence in those early meetings of the magistrates; if not, he would know the reason why, for Ludlow had a temper as well as brains and scholarship, and he was practically the first governor. This Court made a very modest beginning at its first meeting, and did little but elect constables and forbid "trade with the natives or Indians any peece, or 6 81
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pistoll, or gunn, or powder, or shott." It was ordered that any stray swine should be confined two weeks, and if they were then unclaimed, they should be sold. This suggests the policy of the settlers in their court procedure: to make their laws to fit the cases as they arose, meet all occa- sions with common sense and practical measures, and let their jurisprudence evolve with the growth of society. At New Haven it was somewhat different, for the Old Testa- ment laws had a stronger hold there, and of course there was a large supply of common sense on the Sound as well as on the Connecticut. In both colonies it was the policy to face the intricate often vexing questions of the new govern- ment, and to undertake the laborious duties of society with calm deliberation and good judgment.
The second session of this Court was held in Windsor, and the third in Wethersfield, and as we shall see, this plain gathering of straightforward magistrates became in 1639, the General Court, the heart of authority in the common- wealth, and the mother of all the other courts that came into existence as occasion required. Since the "Corte" for which the mother colony so thoughtfully arranged was the only legal authority there was the first year, it fined a citizen for cursing, and ordered that no one should "drink" any but home-raised tobacco; it also passed regulations concern- ing courting, but by degrees it divested itself of a part of its judicial power by constituting local tribunals for settling of estates and to try cases whether of witchcraft, theft, sailing a boat on Sunday, or murder. The election of depu- ties after the adoption of the Fundamental Orders in 1639, was the beginning of the two houses of the legislature, the germ of which is found in the committees from the towns which had met previously with the magistrates. In 1645, a step was taken toward the ultimate division into Senate and House by the provision that no act of the General Court should become a law, without the concurrence of the magistrates and deputies. When Connecticut and New
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Haven were united in 1664, the General Court became the General Assembly, and in 1698, the distinction between the governor and council as one house and the deputies as the other was made distinct.
In accordance with the only sensible course, there was a division of labors as early as 1638, a year before the adoption of the Orders, when the General Court organized a Particular Court to meet in Hartford on the first Tuesday in May for the trial of two persons charged with misdemeanors. This Court was doubtless made up of magistrates, and it be- came a tribunal less formal than the General Court, meeting more frequently for the trial of cases. It had no stated time for its sessions and was held once in Wethersfield, once in New London, and the rest of the time in Hartford. It was probably held in the meeting-house or the house of a magistrate at first, and as the years passed court-houses became necessary. The methods were simplicity itself, as lawyers were rare; rules of evidence hardly thought of; magistrates conducted the examination of witnesses; argu- ments were infrequent; judgment was based on conscience rather than on legal precedent. The Fundamental Orders make no reference to it, but it continued to hold sessions at irregular times until May, 1642, when it was enacted that it should meet only once in three months, and should be known thereafter as the Quarter Court. The times of meeting were the first Thursdays in March, June, September, and December. When held at other times, it was called the Particular Court.
The earliest record of the definite formation of a court is in May, 1647, when the General Court enacted that it should consist of the governor, deputy governor, and two magistrates: and in the absence of the executive officers, three magistrates should hold court. Its jurisdiction ex- tended to all minor disputes and it was purely judicial in its construction, though its functions included both civil and criminal cases. While it was a court of appeal from
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inferior tribunals, its decisions could be appealed to the General Court. In civil cases, where the amounts involved exceeded forty shillings, the trial, at the discretion of the magistrates, could be submitted to a jury of six or twelve, and two thirds of their number could render a legal verdict. If, in the opinion of the magistrates, the verdict was not in accordance with the testimony, they could empower the jury to reconsider its decision, or impanel another, if the jury had not "attended to the evidence." In suits for damages, if the magistrates deemed the sum allowed exor- bitant or inadequate, they had power to alter it, if done in open court. In July, 1643, provision was made for a grand jury of twelve or fourteen able men to present breaches of laws or misdemeanors. As the magistrates received only fees for their services, a statute was passed to oblige persons to pay the costs of prosecution before leaving court, or suffer imprisonment. The inferior judicial bodies were limited to the township, and were called town courts, con- sisting of three, five, or six men, who were called principal men, or town's men, afterwards selectmen, who were elected annually, and one of their number was chosen moderator, whose presence was required to form a quorum. Their judicial powers were confined to claims of debt and trespass, where the amount involved was less than forty shillings, and before the execution was issued the case could be ap- pealed. Sessions of the town court were held once in two months. Thus we see that up to the time of the charter there were three courts, General, Particular, and Town- tribunals to decide cases according to "conscience and righteousness."
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