USA > Connecticut > Hartford County > Hartford > Colonial history of Hartford, Connecticut > Part 8
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other assembly is suggested, although it is in ambiguous language, than one composed of the "inhabitants" of the plantations. The magistrates had authority to "convent" these upon convenient notice at any time or place. Other than a few essentials, the Commission does not forecast any manner of procedure. It carefully avoids establishing precedents that might embarrass them, or raising points unsettled as yet among themselves. It is a remarkable fact that no feature of it required modification at the expira- tion of the year. As they passed out of it, they left only a trail so faint that it is difficult to follow them. Consider- ing the circumstances, one can hardly doubt that this provisional government was their own product. In this view, it is the clue to an understanding of their procedure to the adoption of the Constitution.
The one year period of this Commission began on or about March 3, 1635-6. Their first court was held in Newtown, April 26, 1636. Seven sessions were convened during the year. The last was February 21, 1636-7. In their proceedings, there was no departure from the strict interpretation of the Commission. The Court's authority was exercised in all criminal and probate matters, in em- powering each plantation to appoint its own military officer and in administering the oath to such constables as the inhabitants had chosen.1 During this year, Ludlow Phelps, Steele and Westwood were present at every court. Ward was absent from the last. Swaine did not attend the first two, for he had not then arrived. He was made a free- man of Massachusetts, March 3, 1635-6, and was a deputy from Watertown May 25, 1636. Pynchon was present November 1, 1636, and Smyth, his son-in-law, did not attend at all.
At the expiration of this year, the plantations were at liberty to make any alterations they desired in their govern- ment. If it was not their own choice, one would expect radical changes. Nothing of the kind occurred. A new situation certainly arose. The terms of the magistrates had expired. They could neither hold over, nor appoint their successors. Indeed, there was only one thing they
1 Mass. Col. Rec., I: 159, 160.
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could do, which they doubtless did before the end of the year, thus giving "convenient notice" - exercise their right under the Commission "to convent the said inhabitants" at a convenient place by way of court. At all events, they did meet March 28, 1637. It is claimed that they made this a Court of Election and that the inhabitants then chose their magistrates. The evidence of this statement is the hitherto unnoticed fact, that among the magistrates then recorded, the name of Thomas Welles is substituted for that of William Westwood. This change must have been made by election. It was evidently in order that the South-side Plantation of Hartford might be represented. Both Steele and Westwood were North-side men. Thus at their first meeting, they put into practice the principle as to the choice of magistrates by the people, afterwards embodied in their Constitution. So, also, it is believed, they began to exercise the franchise, without any restric- tion other than the estate which a legal and resident in- habitant imposed.
The creation of this Court was an important step in their government's development. Yet one serious objection must have appeared, in such a general assembly of the inhabitants for election. A disproportionate power was given to the plantation where the court was held. Quite naturally, as it convened at Hartford, there would be more inhabitants present from that plantation. As authorized in the Commission, the magistrates had appointed the place of each meeting during the previous year. The first was held at Hartford, the second at Windsor, and the third at Wethersfield. The inconvenience of this rotation did not suit them. Thereafter the Court met at Hartford, the central town. So long as its functions were merely judicial, this did not matter. In an election of magistrates, this practice was unfair to Windsor and Wethersfield, to say nothing of its practical exclusion of Springfield. Those were times of danger from the Indians. The inhabitants could not all leave their homes without protectors, and make a trip to Hartford to vote. The idea is absurd. On the other hand, they recognized all the plantations as on an equality, not necessarily as permanent factors in govern-
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ment, but as the charter members of their infant colony. Thus the problem they were really trying to work out was, how they could reconcile in practice, the idea of the people as the source of authority in electing their rulers, with the conditions that made a fair representation of the inhabit- ants in the plantations impossible. Their final solution is given in the Constitution, but that contemplated organized towns, each represented by deputies, and a body of freemen. As yet no town governments had been formed; so they decided, at this first court, after the expiration of the Com- mission, that each company of inhabitants should be repre- sented in their next court, by committees, three in number, chosen by the inhabitants themselves, and that these should, as such, elect the magistrates, sharing with them the responsibilities of government. Thus, wherever the Court was held, the inhabitants had a just, and in that day, proportionate representation. At the same time, the people were the source of authority in their elections.
The term "committee" was the proper designation for such a representative. That word was then used in a sense now obsolete. It signified that each man was an inhabit- ant, to whom a charge, trust or function had been com- mitted. An inhabitant so chosen represented the opinions of other inhabitants. The term was presumably used with design. Historians have generally considered that this word was synonymous with "deputy." It certainly was not. The deputy's office was one some of the settlers had filled in Massachusetts. As there used and defined in the records, the term "deputy" was applied to a representative in the General Court, chosen by the freemen of an organized town.1 If the representatives in these early Connecticut courts had been deputies, they would have been designated by that familiar title in the records. They are so named as soon as organized towns assumed their true function under the Constitution.
The Colonial Records themselves should now be followed with critical care, though it may be tedious. The founders of Connecticut, having solved their problem for the time, constituted the next General Court accordingly. It was
1 Ibid., I: 118.
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convened May 1, 1637, and is famous as the court that declared war against the Pequot Indians. The inhabitants of each plantation were represented by committees, three in number, and the same magistrates were elected. It is not presumed, of course, that no other inhabitants were present. Perhaps most of the leading settlers were there. The committees, however, were the voting members for the inhabitants. As no roll is given in connection with the courts of June 2nd and June 26, 1637, it is thought that they were adjourned sessions, according to subsequent practice.1 Their next court assembled November 14, 1637. The roll calls attention to the fact that a new election had been held. The companies of inhabitants are represented by two committees from each plantation. One of each delegation was a new man, and John Haynes fills the place of John Steele as a magistrate. There was only one other court held during this legislative year, February 9, 1637-8. The word "prsent" after the names suggests that some of the members were not there, and that the roll is fragmen- tary. At the close of this court, the following vote was passed: "It is ordered yt the generall Courte now in being shalbe dissolved and there is noe more attendance of the members thereof to be expected except they be newly chosen in the next generall Courte." Notwithstanding other possible explanations, this vote is thought to indicate that during the year they had held two elections, carrying on the May court by adjournment to the election for the November court, which, at the present adjourned session, they vote to dissolve, intending to make a new beginning with their third year.
Every court, whose proceedings are recorded, from May 1, 1637 to the adoption of the Constitution was a General Court, though probably the magistrates held some Particu- lar courts.2 Most of these courts are designated as such in the caption. Others are proved to have been such by the language and proceedings.3 They evidently used the title current in Massachusetts. There a general court was one composed of magistrates and deputies, convened for certain
1 Conn. Col. Rec., I: 27, 28, 30-34, 40-42.
2 Ibid., I: 16. 3 Ibid., I: 12, 16.
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purposes, such as election, the making of laws or the levying of taxes.1
The first court of the third year was held March 8, 1637-8. In this, the inhabitants of each plantation were represented by four committees. For the first time since the expiration of the Commission, William Pynchon and Henry Smyth of Springfield appear among the magistrates. Perhaps this was rather by courtesy than right, as no committees were present. This court seems to have adjourned to March 22nd and then dissolved. It is evident that the inhabitants are now looking for a "settled order" of colonial govern- ment. Their attention had hitherto been engaged in fighting the Indians, military affairs, measures to secure provisions and the payment of a war debt. In each planta- tion they were under the necessity of making their divisions of land, erecting their buildings and breaking up their fields. We now notice an unusual procedure. The members of their next court, April 5, 1638, which is known to have been a Court of Election, are the same as those of the last, with the addition of committees from Springfield. The roll is as follows:
Magistrates - William Pynchon, Henry Smyth, of Spring- field; Roger Ludlow, William Phelps, of Windsor; John Haynes, Thomas Welles, of Hartford; Mathew Mitchell, John Plumb, of Wethersfield.
Committees - Jehu Burr, George Moxon, of Springfield; Thomas Ford, George Hull, Thomas Marshall, John Mason, of Windsor; Edward Hopkins, John Steele, John Talcott, John Webster, of Hartford; John Gibbs, George Hubbard, Thurston Raynor, Andrew Ward, of Wethersfield.
There was doubtless some special reason why it seemed wise to the inhabitants of Windsor, Hartford and Wethers- field to reelect the same committees, and why these should reelect the same magistrates. That they had begun the discussion of their Constitution seems most likely to have been that reason. Only two committees had been chosen from Springfield. We know that they were elected at a meeting of the plantation's inhabitants. The record is: "There was a free choyce according to an order from mr
1 Mass. Col. Rec., I: 117.
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Ludloe by the plantation of two Goodmen, Committys for the General court to be at Hartford the 4th of April, 1638. The partys chosen are Mr. George Moxon and Jehue Burr." 1 Other particulars concerning this court are found in Thomas Hooker's letter to Governor John Winthrop, written during the following autumn. "At the time of our election," he says, "the committees from the town of Agaam came in with other towns, and chose their magistrates, installed them into their government, took oath of them for the execution of justice according to God, and engaged themselves to sub- mit to their government." 2 There cannot be any doubt, therefore, as to the manner in which this General Court was constituted. Springfield was then a plantation and not an organized town. Its legal inhabitants were the voters. They expressed the wishes of the people in the choice made by the committees. Nor is there the slightest evidence that the conditions were different in the other plantations. The inhabitants of Hartford's North-side Plantation were represented by Steele and Talcott, com- mittees; those of the South-side Plantation by Hopkins and Webster. When the committees had elected magis- trates, they "installed them into their government." John Haynes was of the North-side, and Thomas Welles of the South-side. Probably it was because of a desire to give each plantation the same voice in the decisions of this im- portant court, that the committees were four in number. So far as the founders of the Colony could devise means, therefore, this General Court was constituted by the in- habitants.
It has been suggested, with good reason, that this court of April 5th adjourned to May 31, 1638, when Thomas Hooker delivered before its members, many others being in attendance, his famous sermon on constitutional govern- ment.3 The discourse itself has been frequently discussed. We are now prepared to understand its historical relation to preceding events. Thomas Hooker did not then pro- claim as a new truth that "the foundation of authority is laid in the free consent of the people." It is an injustice
1 Burt's Hist. of Springfield, I: 153.
2 Conn. Hist. Soc. Coll., I: 13, 14, 18.
3 Ibid., I: 19-21.
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to him to make such a claim. He had presumably held such an opinion two years before, when he set out from New- town. As the inhabitants had practiced that truth more than a year in their government, we may fairly assume that he had already taught it on more than one occasion, now unknown. Nor was it a new truth, to his congregation, that "the choice of public magistrates belongs unto the people by God's own allowance." That was precisely the principle the inhabitants of the plantations had practiced from the first. These are merely premises, already estab- lished in their experience. He is now engaged in enforcing the timely deduction, that "they who have 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." In other words, he is urging upon the in- habitants a further step in their progress - the enactment of laws according to which magistrates shall render judg- ment. That was the issue. He is making the plea of the ages for a constitutional government. It was the logical outcome of the steps they had already taken. In that, was the difference between the theories of many, as well as the practice in the Mother Colony and the democratic government that he and his associates were endeavoring to establish on the banks of the Connecticut River. Governor Winthrop, writing of his own Colony, says: "The people had long desired a body of laws, and thought their condi- tion unsafe, while so much power rested in the discretion of magistrates;" but "the magistrates and some of the elders" were not "very forward in this matter."1 That was one of the points discussed between Winthrop and Hooker in their correspondence that season.2 Thomas Hooker would not have encouraged any other development of Connecticut's early government, than one that tended toward the final adoption of a constitutional government by the people, which was doubtless his cherished ideal.
After the date when Thomas Hooker preached his sermon, we have no records of any general courts, until January 14, 1638-9, when the Constitution was adopted. During the
1 Winthrop's History, I: 388, 389.
2 Conn. Hist. Soc. Coll., I: 1-18; Trumbull's Historical Notes, etc., pp. 8-10.
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summer the confederation of the colonies was under con- sideration. Their negotiations were interrupted by Massa- chusetts' claim of jurisdiction over Springfield. These affairs may have delayed action. The establishment of a constitutional government, however, involved matters that could not be hastily settled. It seems likely that whatever general courts were held, would have been adjourned ses- sions of that already elected. Otherwise, we should prob- ably have had some record and a list of its members. If other courts were constituted by election, they were com- posed, it is thought, of the same committees and magistrates that had been already twice elected, contrary to previous custom, apparently because the framing of the Constitution had been committed to them.
How was the Constitution of 1639 adopted? Interest has gathered about this question, because it has been thought that the manner of its adoption determines a fact of large importance in our constitutional history. That, we think, is not true. However the Constitution was adopted, it was the act of resident inhabitants in three Connecticut plantations. It originated with and was adopted by the people. Some have believed that it was adopted in a mass meeting of the "inhabitants and resi- dents." Others have argued that it was adopted by the representatives of three organized towns, convened in a general court. The author claims that we are not restricted to these two opinions. Neither of them is in harmony with the Colonial Records, and yet there is truth in both of them.1 The advocates of the former view have appealed to the language of the Constitution's preamble: "We the Inhabitants and Residents of Windsor, Harteford and Wethersfield, now cohabiting and dwelling in and vppon the River of Conectecotte." The phrase, "Inhabitants and Residents," was then in common use in New England. It meant simply "resident inhabitants," and excluded such legal inhabitants as were non-residents. The Commission itself had been issued to those who were to "reside and inhabite" or "sitt down & cohabite" in Connecticut. The
1 New England States, I: 448 ff .; Connecticut Magazine, V: 86 ff .; Anniversary of the Adoption of the Constitution, p. 26.
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preamble states the exact truth. The Constitution was adopted by the resident inhabitants. That could be, however, without a mass meeting. Such a gathering was excluded by their own principle of having a fair representa- tion. It would have been less dignified and orderly, to say nothing of the improbability of such a meeting in times of danger from the Indians and in mid-winter. Such a mass meeting, convened in Hartford, would have been composed largely of local inhabitants. Those who advocate the second view have based it upon the assumption that there were then three organized towns, represented as such by committees. From this we dissent. They have, however, correctly interpreted the Colonial Records. These do not contain the least evidence of a general gathering of the inhabitants. In the author's opinion, the Constitution of 1639 was adopted at a meeting of the General Court, and by that body, which was constituted of committees and magis- trates, representing, directly and indirectly, the resident inhabitants of three Connecticut plantations. There was a General Court convened at Hartford, January 14, 1638-9. We have, in the records, one of its votes. There is no reason to think that the founders departed on this occasion from their established practice, nor that this Court was constituted in any other way than was customary in carry- ing out the will of the people. It seems most likely that this General Court was composed of the committees and magistrates already named in the roll of April 5, 1638, with the exception of the representatives of Springfield, who had withdrawn. In that case, the men who participated in its action were all prominent inhabitants. Four of the six from Hartford attained gubernatorial honors. Of the remaining two, one became the Secretary, and the other the Treasurer of the Colony. Other leading inhabitants were doubtless present, the pastors, teachers and elders among them. Their assembly is historically named a "General Court"; but, in modern terms, it was rather a Constitutional Convention. Hartford then had an immature town organi- zation. Still it had no representation, as such, in that body. The Constitution they had framed was the inspira- tion of the people. It was adopted by the people, and its
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THE ADOPTION OF THE FUNDAMENTAL ORDERS
PEN
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blessings were for the people. We can dimly see through the mists their solemn assembly in the meeting-house of Hartford, in their midst "the first written constitution in the history of nations"; and it is as dramatic a scene as the signing of the Declaration of Independence.
The attention of historians has been so largely directed to the study of records preceding this event, that those which follow it have escaped due notice. There we find the solution of some of our enigmas. The vote of adoption did not, in fact, put their government into immediate opera- tion. That was impossible. Their plan had provided for some factors that were not in existence. These had to be created. As in setting up a machine, there were various parts to be assembled. The inhabitants had founded a Commonwealth. In so doing, they had vested the "supreme power" in a General Court. Some of the rights they had held were thus suspended until that Court acted.
The adoption of the Constitution modified their rights of franchise. Under plantation government, the inhabitants had been the voters in all local affairs and had chosen the committees. Such as took the oath of fidelity, still had the right to vote for deputies. To fill that office, however, or to vote for the governor and magistrates, they must now be made freemen. This standing was attained by vote of the General Court and taking the freeman's oath. Hitherto there had been no such class. Under these circumstances, their government could only continue as before, until the body of freemen was constituted. This was their first act. We conjecture that the Court of January 14, 1638-9, ad- journed to February 18th for that purpose.1 Many in- habitants were certainly made freemen at an early date - all who served as magistrates or deputies. The average standing of those admitted later indicates that the principal inhabitants had already qualified. On April 11, 1639, these freemen held their first election of governor and magistrates. Still the plantations, not being as yet or- ganized towns, were then unprepared to act under the Constitution in the choice of deputies. The inhabitants,
1 Conn. Col. Rec., I: 30. Cf. pp. 41, 42.
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therefore, elected, as formerly, "committees," which fact the records prove.
In their new Commonwealth, justice was to be adminis- tered according to established laws. As yet, they had no such code. Little opportunity had been given to become acquainted with those laws that had been enacted. On this matter the Court took action October 10, 1639. Wyllys, Webster and Spencer were then appointed to review "all former orders and lawes," record those of "publique con- cernement," and deliver them to the Secretary to be pub- lished to the towns. Within twenty days after the end of the Court, he was to provide a copy of all the penal and general laws "for the government of the Commonwealth," deliver the same to the constables of each town, who were, within four days, to publish them at some public meeting, and then cause them to be written in a book to be kept for the town's use, and read publicly every year.1 Thus the earliest code of Connecticut laws was prepared in manu- script.
The inhabitants, moreover, had been the lawful owners of the undistributed lands in the several plantations; but, in the Constitution, they had explicitly made over to the Court their right to "dispose of lands vndisposed of." Their act was an effectual conveyance to the Colony, from which they expected to receive later their title. This suspended all distributions of new tracts until the Court acted. Such was, in fact, its effect. We have found no evidence in the records of any new distributions between January 14, 1638-9 and October 10, 1639. On the latter date, the General Court by an order gave to each of the three towns the "power to dispose of their owne lands vndisposed of, and all other comodityes arysing out of their owne lymitts bounded out by the Court." 2 In order that they might proceed in such distributions, however, it was necessary to form the original owners into a body of pro- prietors in each town, for later residents were not admitted
1 Ibid., I: 36, 39. Several manuscript copies of the Code of 1650, with the addition of session acts to 1708 are extant. Windsor's copy is among the collec- tions of the Connecticut Historical Society and Guilford's is in the Pequot Library. 2 Ibid., I: 36.
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to an equal participation in the inhabitants' property. It was this situation that gave rise to the formation of "The Thirty-four Men," or proprietors, of Wethersfield. In an adjustment of claims, they made the agreement with the Church and the Town, out of which their land disputes arose. The inhabitants of Hartford began similar action on December 26, 1639. Their procedure is traced in a later chapter on the proprietors.
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