USA > Connecticut > A history of Connecticut, its people and institutions, pt 1 > Part 8
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After the charter there were changes as settlements multiplied, and counties were formed, with courts according to the new divisions. In 1665, the colony was divided into four counties-Hartford, New Haven, New London, and Fairfield. The old Particular or Quarter Court gave way to the Court of Assistants, so called because it was composed
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of a majority of the assistants, the successors of the magis- trates of the old General Court, and this was constituted in October, 1665, with jurisdiction over crimes relating to life, limb, banishment, and appellate, also questions of divorce and admiralty. It was held semi-annually, one week before the General Assembly. When the counties were organized, a County Court was established in each, of three assistants and two commissioners, afterwards called justices of the peace. In 1698, it was voted that in each county, four of the most able and judicious freemen should be justices, three of whom, with a judge appointed by the General Assembly, should have power to hold a County Court. In October, 1698, it was voted that three justices could hold court. From that time until 1821, the formation of County Courts was unchanged with one judge and from two to five justices of the peace, all commissioned by the General Assembly. From 1821, to 1839, there were three judges. In 1839, a county commissioner was added; in 1853, the County Courts were abandoned, to give way to one judge and two or three commissioners. The jurisdiction of the County Court was at first substantially the same as that of the Particular Court. It had power in settling property, and probating wills, and also over prerogative powers that were transferred to it. It could try all cases, "real, personal or mixt," and all criminal cases, "not extending to life, limb, banishment, adultery or divorce." In 1798, it was pro- hibited from trying cases whose punishment extended to confinement in Newgate, except horse-stealing.
In 1669, the Town Courts were reorganized, to consist of an assistant or commissioner and two selectmen, and appeals could be taken to the County Court, thence to the Court of Assistants, then to General Assembly. In 1711, the Court of Assistants was superseded by the Superior Court, with powers of the older tribunal transferred to it, namely, punishment of offenders, civil causes, appeals, and writs of error. It held sessions in each of the counties, having a
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chief judge and four others,-the governor as chief judge and the rest from the council. The power of the Superior Court gradually increased; in 1762, authority was given to it to grant new trials on discovery of new evidence and afford equitable relief up to one hundred pounds; later to four hundred pounds and in 1778, to eight hundred pounds, while cases relating to sums under one hundred pounds went to the County Courts. In 1784, it was enacted that the lieutenant-governor and council should be a Supreme Court of Errors, to which questions of law and equity from the Superior Court should be referred,-to meet annually, al- ternating between Hartford and New Haven, and in 1795, the governor was added. The docket became so crowded with the increase of the population that in 1806, the Su- preme Court of Errors ceased, and judges of the Superior Court assumed the duties of the court of last resort, and the number was raised to one chief judge and eight assistants, meeting annually in alternate years in Hartford and New Haven. In 1819, this court consisted of one chief judge and four associates. In 1855, the Supreme Court was changed to consist of a chief and two associates. In 1859, the associates judges were increased to three, and in 1865, to four. From the foundation of the Superior Court in 17II, the appointment of the judges was by the General Assembly year by year, and with the adoption of the consti- tution in 1818, it was ordered that they serve during good behavior until seventy years old; in 1880, it was voted that the governor nominate the judges. Owing to the accumula- tion of cases in the Superior Court, the Assembly in 1869, established a Court of Common Pleas in Hartford and New Haven; New London and Fairfield in 1872; Litchfield in 1881, with jurisdiction in legal and equitable relief in sums from one hundred to five hundred dollars, and later five hundred to one thousand dollars, with the concurrence of the Superior Court.
The growth of the Probate Courts has been as follows:
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Ludlow's code made provision for the settlement of the estates of deceased persons under the title of records. By the statute of October 10, 1639, on the death of a person possessed of an estate, leaving a will in writing, or by word of mouth, those men who were "appointed to order the affairs of the town where any such person deceaseth" were to make and report a true inventory of the estate, and record the will and names of children and legatees within three months. The court intended was the Particular Court, which exercised probate duties until abandoned. Sometimes there were three witnesses, sometimes two, sometimes none. In case a person died intestate, the town officers distributed the property to the family, or "for the good of the common." After the abandonment of the Particular Courts, the pro- bate powers went to the County Courts, and in 1698, these powers were lodged with the respective judges with two justices, and there began the separate Probate Court, in that one less judge was needed than for the County Court. In 1702, the duty of making an inventory was taken from the selectmen and given the executors or administrators. In 1716, it was enacted that Courts of Probate be established in the several counties, with one judge and a clerk. The first probate districts were coextensive with the four original counties; the first change to a district less than a county was made in 1719. There were one hundred and twelve Probate Courts in 1913.
The office of justice of the peace began in 1669, when an . act was passed to empower an assistant or commissioner, with the selectmen, to hear and determine cases at which less than forty shillings was at stake, with right to appeal to the County Court. Various changes in the powers of these officers were made from time to time, and it was not till 1848, that a justice of the peace could sentence a criminal to imprisonment, and never over thirty days. Appeals could be taken to the higher courts for everything, except convic- tions for profanity or Sabbath-breaking. The right of trial
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by jury (though declared by the Constitution inviolate) does not exist in justice suits, and is only exercised by special statutes; when permitted, six persons are selected from the jury list of the town.
As we have seen, the oldest office in Connecticut is the constable, originally the military center, and afterwards the conspicuous and authoritative peace officer of the colony, to put forth hue and cry after murderers, thieves, and robbers; to arrest Sabbath-breakers and vagrants without warrant; to keep the oversight of taverns and lock up loiterers. He could call on any citizen to aid him, under penalty of ten shillings, and, if obstinate, forty shillings. He summoned town meetings, enforced the collection of taxes, and helped the tithing-men guard the Sabbath. In 1715, the General Assembly ordered that "constables and grand jury men shall on the evenings after the Lord's day, and after public days of religious solemnity, walk the street, and duly search all the places suspected of harboring and entertaining any persons assembled contrary to law." These three officers, tithing-men, constables, and grand jurors, met in January and June to "advise, consider and use their joint interest in suppressing profaneness, vice and immorality." These officers received two shillings a day for their services as police, and their pay came from fines upon offenders. Only one was paid for one arrest. The symbol of office was a black staff, furnished by the selectmen. There were no sheriffs until 1702, though the office had existed from earliest times under the name of marshal, and the code of 1650, as- sumes it. The marshal was a civil officer, appointed by the General Court to preserve order. After the union of Con- necticut and New Haven, there was a marshal in every county, appointed by the County Courts. In 1702, the sheriff superseded the marshal, and in 1722, his duties were defined: to conserve peace, suppress riots and tumults and summon militia. In 1724, his powers were still further enlarged, and he could summon any one to assist him.
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Deputy sheriffs were appointed from time to time in the eighteenth century, and in 1766, several deputy sheriffs were appointed in every county by the sheriffs. In 1724, the sheriff was appointed to have charge of the jail, with the right to appoint keepers.
The code of 1650, contains an act, which first appeared in 1643, by which it was ordered that a grand jury of twelve or fourteen men was warned to appear at every court yearly, in September, or as the governor or court found necessary to present breaches of laws. When County Courts were established, this provision was made applicable to them, and twelve grand jurymen were to meet in each of the four counties. In 1680, it was ordered that they should serve for a year. By 1702, clerks of the several County Courts were directed to summon one or more men from every town to serve as grand jurors, to report once a month all misde- meanors to the next assistant or justice of the peace. These men became informing officers, with power to make com- plaints individually. They were liable to a penalty of forty shillings if they failed to take office when summoned. In 1712, it was voted that two or more grand jurors be appointed at town meetings, and their names reported to the clerk of the County Court. The Superior Court summoned its own grand jury of eighteen. In capital cases it was neces- sary that indictment should be made by a jury of eighteen, in which twelve must agree. The constitution of 1818, declared that "no person shall be holden to answer for any crime, the punishment of which is death or imprisonment for life, unless on a presentment or indictment of a grand jury."
This sketch of the development of the courts and various offices as occasion arose needs to be supplemented by an account of the growth of common and statute law. After the adoption of the constitution in 1639, the General Court built on that foundation numerous enactments needed to perfect the civil organization of the new colony. In October,
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1639, Wyllys, Webster, and Spencer were appointed a com- mittee to "review all former orders and lawes, and record such of them as they conceave to be for publique concern- ment; and deliver them into the secretaryes hands to be published to the several townes; and all other orders that they see cause to omit, to be suspended until the Court take further order." There was one manuscript statute book for every town, in which the new laws were copied after every session. For more than a generation, the laws were conveyed to the towns by word of mouth, and once a year the constable read the laws to the assembled freemen. New Haven taught the advantage of circulation of the statutes, which were printed in 1673, and after January, 1674, every household was required to have a copy. The first time that the incorporation of towns was recognized was in Ludlow's code, which regarded them as component parts of the body politic, but there was no special title given to the subject. In the code of 1672, their duties and powers were gathered and established. On them was laid the burden of supporting the poor, making and repairing roads and bridges, and, by taking impost, the responsibility for military defense.
The criminal code was taken with few exceptions from that of Massachusetts, which was based on the English law. The code of laws was put into shape, as has been said, by Roger Ludlow, who was requested to "take some paynes in drawing forth a body of Lawes," by the General Court of April 9, 1646, a work which he completed in four years, taking fourteen articles from the Body of Liberties of Massa- chusetts, adopted in 1641; but sixty-three of the articles were new and distinct, and the seventy-seven articles from the hand of Ludlow were adopted by the General Court in May, 1650, and the only recognition of his great service is certified by a minute in the records of February 5, 1681 : "This Court grants and orders that the secretary shall be allowed and paid the sum of six pounds, being in p't pay-
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ment of his great paines in drawing out and transcribing the country orders, concluded and established in May last." There is no record of a compensation to Ludlow, other than the statement that "it is the mynd of the Court that he be considered for his paynes." Ludlow's code covers fifty pages of the Colonial Records, and his classification was retained until 1854, when fifty-eight of his titles, somewhat modified, were still used. Ludlow was a man of iron will and unyielding integrity, but his tongue was apt to express a sharp temper, which sometimes "grew into a passion," and after his great work of codifying the laws ended, he left Connecticut. In 1654, he carried out a plan he had defined at Boston twenty-two years before, and went back to the mother-country, settling in Dublin, where he served on the first Irish commission under Cromwell, and afterwards was made a Master in Chancery.
A new era began with the union of Connecticut and New Haven, and the revised code went into effect in January, 1664, with suffrage limited, punishments still tainted by medievalism, religious freedom unknown, land held by tenures, which were free from the dangers of forfeiture, since no property reverted to the colony. The subject of educa- tion was prominent in legislation by 1672, and many of the regulations then passed remained in force for two hundred years. Divorce became a fruitful cause for legislation, and four divorces were allowed in 1653. The grounds for divorce given in 1677, at a time when no divorces were granted in any other Christian country, were adultery, fraudulent con- tract, willful neglect of duty, and seven years' providential absence, without being heard from.
In the preface to the revision of 1672, it was declared that it was not the purpose of the planters "to impugn the state laws of England so far as we understand them," and while the legislature was independent, not taking the trouble to ask what was the law of England, the common law of the mother-country slowly and insidiously grew into
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the decisions of the colony as the lawyers and judges here became better educated, and it came to pass that Connecti- cut common law rested on English common law in recogni- tion of its wisdom and propriety. The declaration of the Fundamental Orders of 1639, that the General Court should embody the supreme power of the commonwealth, and the bill of rights in the code of 1650, by which no person should be damaged in life, liberty, and property, "unless it be by virtue or equity of some express law of the county warrant- ing the same, established by the General Court and suffi- ciently published, or in the case of the defect of a law in any particular case by the word of God," were a practical repu- diation of the common law. It was the intention of the settlers to base the government on a code and in harmony with revealed religion. There was a radical departure from English methods, in equipping the government with an executive head without power, and a strong legislature, in combining law-making and law-interpreting, in the recogni- tion of equality among men, and in refusing to admit classes, titles, and aristocracy, though there was quite enough of caste in many communities.
Primogeniture rested on the Mosaic code, and was adopted in England as a military necessity in rude times, but it was never adopted in Connecticut, not even in the code of 1650, which permitted all persons of twenty-one years to make such wills and alienation of land as they chose. The law of 1672, provided that property of persons dying. intestate should be divided among wife and children accord- ing to equity. In 1699, a law was passed in Connecticut providing that there should be an equal distribution of the whole estate, except a double share to the eldest son. This act was annulled in 1727, because contrary to the law of England, but the colony never paid any attention to the annulment.
In May, 1776, there was passed what has been called "the most important statute in Connecticut history." It was then enacted that the
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form of Civil Government in this State shall continue to be established by charter received from Charles II., King of Eng- land, so far as an adherence to the same will be consistent with the absolute independence of this State on the Crown of Great Britain, and that all officers civil and military heretofore ap- pointed by the State, continue in the execution of their several offices, and the laws of this State shall continue in force until otherwise ordered; and that for the future all writ's and processes of law and equity shall issue in the name of the governor and company of the State of Connecticut, and that in all summonses, attachments and other processes before any Assistants or Justices of the Peace, "one of His majesty's Justices of the Peace" be omitted, and that instead thereof be inserted "Justice of the Peace," and that no writ or process shall have or hear any date, save the year of our Lord only, any law, usage, or custom to the contrary notwithstanding.
Of all the laws of Great Britain, under which the colonists lived when the supreme head was an English king, only one has remained in force: an act of Parliament passed in 1762, establishing the Gregorian calendar. The steadiness of the Connecticut temper is seen in the lack of radical changes in the laws up to the Revolution. After the revision of 1702, forty years passed before there was another.
There has long been a keen interest in the Connecticut "Blue Laws," and after years of attack and defense, it is possible now to consider the subject reasonably. Before the Revolution, there existed the phrase, current in New York, Massachusetts, and even New Haven-"Connecticut Blue Laws." It is a colloquial term applied to severe and antiquated laws found on the statute books of the older colonies, of which Connecticut was believed to possess an unusually stern edition. Soon after the Revolution, this state was made still more conspicuous by the publishing of a history by an Episcopal minister, Samuel Peters, who was born in Hebron in 1735, became rector of the little church in his native town, where he lived until the Revolution.
A
GENERAL HISTORY Jonathan OF
CONNECTICUT,
FROM ITS Firft Settlement under GEORGE FENWICK, Efq.
TOITS
Lateft Period of Amity with GREAT BRITAIN.
INCLUDING
A DESCRIPTION OF THE COUNTRY,
And many curious and interefting ANECDOTES.
To which is added,
An APPENDIX, wherein new and the true Sources of the present Rebellion in America are pointed out ; together with the particu- Tar Part taken by the People of Connecticut in its Promotion.
By a GENTLEMAN of the PROVINCE. (Samuel Q. Peters)
Plus apud me ratio valebit, quan olgi opinio. Cic. Parad. 1.
LONDON: Printed for the AUTHOR ; And told by J. BEW, No. 28, Pater- Noter Row, MDCCLXXXI.
Facsimile of the Title-page of Peter's History
This history of Connecticut by the loyalist Rev. Samuel A. Peters gave occasion to the Connecticut "Blue Law " tradition. A copy of the first edition, printed in London, 1781, is in the Connecticut State Library
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His aggressive loyalist convictions provoked the resentment of the Sons of Liberty, and a party of them threatened him with tar and feathers, and compelled him to promise to refrain from meddling with political affairs. Repeated offenses led to a second visit, and Peters, putting on his priestly robes, addressed the crowd, "quibbling and equivo- cating," as the story comes down to us through biased minds, but the men pressed into the parsonage and found loaded guns and pistols. Then they seized Peters, tearing his clothes, putting him in a cart, they hauled him by his own oxen to the Green, where they set him on the public horse-block, and forced him to sign a declaration and con- fession that he repented of his past misdeeds, and promised that he would give no further cause for complaint. He was then made to read the papers aloud to the crowd and give three cheers. Peters says that the mob "destroyed his windows, rent his clothes, almost killed one of his church people, tarred and feathered two, and abused others." Governor Trumbull ordered the civil authority at Hebron to "preserve peace and good order, and put the laws in execution." Peters knew he would be safer and happier elsewhere, and he soon moved to Boston, and in November, 1774, sailed for England, sending back letters to friends in Hebron, but spies behind stone walls overheard his messen- gers talk about the letters, and securing the missives of the angry minister they offered the unfortunate letter-carriers a whipping or running the gauntlet; choosing the latter, they became the objects of the spite of the Sons and Daughters of Liberty of the neighborhood, and were glad to get through with their lives.
Peters was twenty years in England, and it is not sur- prising to learn that, burning with rage over the rough treat- ment he had received, he published in 1781, a history of Connecticut, which no one can read without seeing that there is opportunity for self-control and judgment in coming to a conclusion upon the Munchausen writings of a man who
Chief-Justice Oliver Ellsworth and his Wife, Abigail Wolcott Ellsworth From a painting by R. Earl, 1792. By courtesy of William Webster Flieworth Fen of the Cant ... " Dahliching Co
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speaks of the water at Bellows Falls as so "consolidated by pressure, by swiftness, between the pinching, sturdy rocks, to such a degree of induration that no iron crow can be forced into it," and the stream is "harder than marble." He also speaks of the "infamous villainy of Hooker, who spread death upon the leaves of his Bible, and struck Connecticote (a great sachem) mad with disease," and of the conviction and punishment of an Episcopal minister in 1750, for break- ing the Sabbath by walking too fast from church and comb- ing a lock of his wig on Sunday. As specimens of the "Blue Code of Connecticut," he says, it "made it criminal in a mother to kiss her infant on the Sabbath-day"; "Every male shall have his hair cut round according to a cap"; "No one shall read Common Prayer, keep Christmas or Saints-days, make minced pies, dance, play cards, or play on any instrument of music, except the drum, trumpet and Jews' harp." It must be admitted that the irritated Peters went beyond his authorities in these statements, but it must also be said that in the large majority of the forty-five laws which he collected, there was a basis not only in the statutes of New Haven and Connecticut, but also in the laws and courts of Massachusetts, whence, as we have noticed, most of the Connecticut laws were derived. The injustice of the Blue Law charge is in singling out Connecticut for derision, and in publishing four ridiculous laws which had a place only in Peters's heated imagination. In 1631, Massachu- setts passed a law that no man should court a maid unless by consent of the parents, and Connecticut borrowed it. In 1647, Massachusetts passed a law to banish Quakers, under penalty of death if they returned, while New Haven never threatened Quakers with death, but gave a choice of imprisonment, banishment, whipping, and branding, with the expenses paid by the resolute visitors. The law against card-playing prevailed in Massachusetts as well as in Con- necticut, and as late as 1812, seven young men in New Haven were fined for violation of this law. The law that
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married people should live together was no bluer in Con- necticut than in Massachusetts. The law permitting the rack or torture in examination of witnesses, or, as we should now say, "third degree," was a law of Massachusetts too, though it was not to be "inhumane."
It would be impossible to give more than the faintest idea of the regulations in the different towns, ranging from settling a minister to killing blackbirds and rattlesnakes. Swine appear to have been one of the most fruitful topics. Innumerable were the perplexities that came up year after year. Sometimes they were ordered to be rung and yoked; sometimes to be confined, then again they could go at large. Here is a sample vote passed in Norwich: "In the time of acorns, we judge it may be profitable to suffer swine two months or thereabouts to go in the woods without rings." Yokes were to be two feet in length, and six inches above the neck. The recording of cattle marks was a serious task, and necessary, as pasture lands were held in common, and private fences often insecure. These marks were made on the ear, and were a cross, a half-cross, and various kinds of slits and notches. The towns were in the habit of making grants of land to those who promoted public improvement. Hugh Amos, who in 1681, first established a ferry over Shetucket River, received one hundred acres of land. Millers and blacksmiths were so valuable that they were given prizes of land. In 1680, Captain Fitch of Norwich was granted two hundred acres on condition that he build a saw mill in a cer- tain place. Thomas Harris of Glastonbury received in 1667, a grant of forty acres of land on condition that he should build a saw mill in Glastonbury. There was much confusion in the deeds and lines, because of imperfect surveys and vague and contradictory deeds. Many of the bounds were transitory, as appears when one considers such bounds as these,-a black oak with a crotch, a white oak, a tree with a heap of stones around it, a bowlder, a clump of chestnuts, a walnut with a limb lopped off, and a birch with a gash in it.
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