USA > Connecticut > Connecticut in transition: 1775-1818 > Part 15
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43 For biographical data, see: Dexter, Biographical Sketches, IV, 101-103, 114- 117, 260-264; Thomas Day, Appendix to 13th. Rept., pp. 6, 12; Loomis and Calhoun, Judicial History, pp. 199, 266; Kilbourne, Sketches, pp. 121-125.
44 Mercury, Nov. 8, 1814; Aug. 27, 1816; Courant, Nov. 8, 1814; Jan. 31, 1815.
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Yale, and consequent opposition to an Episcopalian college. Their se- lection of intimates for state appointive officers and for senators and presidential electors was not overlooked. They were charged with being under clerical domination, being either the sons of Congregational ministers or closely allied to them by blood or marriage. They were compared to the French Directory as the mainspring of the state on whom all men depended.
The judiciary existed only in the statutes enacted from time to time by the General Assembly. While the powers and duties of the various courts were fairly well defined, the whole system was extremely com- plicated. To Judge Swift's System of the Laws both bench and bar were deeply indebted for a succinct statement, describing the various courts, their jurisdiction and personnel.
The supreme judicial power lay in the hands of the General Assem- bly. Until 1818 it remained the highest court of appeal, not unlike Par- liament, retaining in addition equity jurisdiction in cases of over $5,000 and in special divorce cases. The other courts were established by the General Assembly, only to relieve itself of pressure, while business in- creased as the commonwealth grew more populous and life became more complex.45 This explains the dependence on the Legislature of the supreme court of errors, the superior court, the county or common pleas courts, the probate courts, the justices of the peace, and the courts of incorporated cities.
The supreme court of errors 46 was established in 1784, in order to relieve the General Assembly of the bulk of its judicial work. This court under the presidency of the governor was made up of the lieutenant governor and the assistants. A session was held every June alternately at Hartford and New Haven. Decisions were in writing and were filed away by the clerk, so that the court was bound by precedent. As the court of final appeal, all matters of law or equity could be brought to it for review from the supreme court.
The supreme court was subjected to considerable criticism because of the method of its creation and its personnel. Assistants who acted in lower courts were virtually reviewing their own decisions. They were judging cases in which their political friends and even brother-judges
45 Loomis and Calhoun, Judicial History, p. 125; Swift, System of the Laws, I, 60.
46 Loomis and Calhoun, Judicial History, p. 133; Statutes, pp. 204, 205, 218.
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THE WORKING GOVERNMENT
were interested personally or professionally. Its members were elected to make laws, not to adjudicate, and if untrained in the law they were not fitted to render decisions. At length, criticism forced in 1806 the discontinuance of the supreme court of errors as then constituted.47 The judges of the superior court were increased to nine, any five to be a quorum with the secretary of state as their clerk. In 1819 the supreme court fell before the new order.
The superior court 48 dated back to 1711, its five justices being in- creased in 1806 to a chief justice and eight assistant justices. Until 1818 they were annually appointed by the General Assembly. Judge Swift would have had them appointed for life or during good behavior, that they might be more independent, especially in cases where an influen- tial character, say a member of the Legislature, happened to be opposed to a poor man without influence or friends. The state was divided into three circuits, on which these judges were sent, appearing twice a year in every county. Cases might come on appeal to the superior court from the decision of its own circuit judge.
As a regular court, it adjudged all crimes, the punishment of which related to life, limb or banishment. Blasphemy, atheism, and Unitarian- ism came within its jurisdiction, as did statutory divorces, perjury, bur- glary, horse-stealing, forgery and the like. This court, by virtue of one of its own decisions, had the power to issue writs of mandamus to in- ferior courts, restraining or compelling them to execute justice or force a town clerk to record a deed. It granted writs of habeas corpus. On complaint the court might disfranchise a freeman for walking scandal- ously, and on his reformation restore his electoral privileges. The su- perior court considered cases in equity up to about $5,000. Its appellate jurisdiction included all criminal cases from the lower courts, and civil cases from the county and probate courts of more than twenty dollars value.
The county or common pleas courts 49 were established about 1666, when county lines were first traced. These courts were composed of a
47 Statutes, pp. 218-221.
48 Ibid., pp. 205, 218-220; Swift, System of the Laws, I, 93 ff .; Loomis and Cal- houn, Judicial History, pp. 132 ff., 180. In 1806 it was provided that a circuit judge who sat on the case should not act on an appeal unless a quorum demanded his presence.
49 Statutes, pp. 197, 207; Swift, System of the Laws, I, 80, 101-104; Dwight, Travels, I, 238; Loomis and Calhoun, Judicial History, pp. 129-131.
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chief justice and four assistants, with a clerk of their own choice. As the judges were annually dependent on the General Assembly for re- appointment, their disinterested impartiality was subject to suspicion. Any three judges made a quorum, and if necessary any assistant or justice of the peace could be called in to act. Its original jurisdiction in criminal matters included all crimes save those punishable by life, limb, banishment or Newgate penalties; and in civil cases anything beyond the consideration of the justices of the peace. In civil matters it exer- cised an appellate jurisdiction from the justice in disputes regarding bonds of more than seven dollars; and in chancery, jurisdiction up to $335. Among its essentially administrative duties were the superintend- ence of the estates of incompetents, appointment of guardians, levying the judicial tax on counties, admission of attorneys to practice and penal- izing them for faulty pleading, and laying out highways.
The state was divided into about thirty probate districts, every one under a judge annually appointed by the Legislature.50 Their duties con- sisted in probating wills and appointing guardians, all of which prior to 1716 had fallen to the General Assembly or to the county courts. When an appeal was taken from the probate to the superior court, the latter only defined the law, leaving the probate judge to carry out its administration.
The justices of the peace,51 averaging about seven to a town, were annually appointed by the Legislature and hence, like the sheriff, repre- sented the state in the locality. As such, they advised in the executive affairs of the community. The senior justice had charge of the local elections. With the selectmen and constables, they named the tavern keepers; bound men to keep the peace; and apprehended suspects. Their jurisdiction was confined within the town, but their warrants only by the state. Their jurisdiction was not unlike that of the English justice of the peace. In criminal matters the town justices could act in cases where the fine was not more than seven dollars, and could condemn to the stocks or whipping post Negroes or those unable to pay a fine. A single justice could not sentence a criminal to prison. In civil matters their jurisdiction was limited to $15, save in special actions. Cases of drunk- enness, swearing, Sabbath-breaking, debts, unlicensed taverns, unlawful
50 Statutes, pp. 209-213; Dwight, Travels, I, 240; Swift, System of the Laws, I, 104; Loomis and Calhoun, Judicial History, pp. 151-153.
51 Statutes, index; Public Laws, index; Swift, System of the Laws, I, 60, 92, 107-109; Loomis and Calhoun, Judicial History, p. 155.
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THE WORKING GOVERNMENT
lottery tickets were brought to their attention. Appeals could be taken in all cases save those of swearing or Sabbath-breaking.
The justices came to be regarded by the Republicans as the Council's minions in the locality, as efficient workers in the Federalist political system. They were invariably Federalist in politics or, if not, were po- litically silenced. This explains the Republican antagonism to the jus- tices, even if, as the Hartford Courant noted, they only received "the squire and half a dozen six-pences a year." 52 As justices were frequently representatives, sheriffs, mayors, or town officers, there was something in the charge that too much power was centered in their hands.53
The judiciary was described as smooth-working, just, calculated to avoid expense and delay, and administering a penal code far different from the atrocious one of England. The most orthodox Federalist ad- mitted the judiciary to be the weak spot in the government. Dwight lamented the dependence of judges in intriguing for annual reappoint- ments.54 In practice their terms were long, probably because the Legis- lature reviewed their decisions with satisfaction. Dwight, with a Bibli- cal vision, would have judges responsible to God alone. Swift demanded an independent judiciary, especially objecting to the legislative preroga- tive which allowed them on petition to review a case from the lower courts. Such appellate jurisdiction seemed to him a menace, for the Legislature considered a case chiefly with an idea to its political ex- pediency. In this reasoning, Colonel Kirby as a jurist and a Republican agreed.55
Alexander Hamilton was quoted by Republican writers, to indicate the dangers of judicial complaisance if judges' commissions were tem- porary. The judiciary should be a separate branch of the government in order to exert a restraining influence upon the Legislature and execu- tive, and to afford a free people security against a tyrannical exercise of power. This could not be true when every judicial office existed only by virtue of a statute, subject to repeal at the pleasure of the Legislature. Judges and justices were not only appointed by the Legislature, but
52 Mercury, Apr. 2, June 4, 1816; Courant, Aug. 19, 1817.
53 Forbidden by an act of 1812. Public Laws, p. 84.
54 Dwight, Travels, I, 243 ff .; Dwight, Decisions, pp. 269 ff. See Dwight, Con- necticut, p. 442; Greene, Religious Liberty, p. 428. Thomas Seymour, Chief Justice of Hartford County for twenty years, became a Republican and was dismissed. Mercury, May 24, 1804.
55 Swift, Vindication of Superior Court (1816); Conn. Reports, I, 428; Baldwin in New Haven Hist. Soc., Papers, V, 208.
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CONNECTICUT IN TRANSITION: 1775-1818
often were themselves representatives. As such they were subject to accusations of bargaining to win judicial preferment. Being dependent, they were apt to be politically partial.
Judge Samuel Church of the supreme court of errors and a framer of the constitution of 1818 wrote:
The Courts of law were most complained of as being partisan in the dis- charge of their duties. The Judges were annually appointed and an inde- pendent judiciary was loudly and earnestly demanded. Prosecutions by States Attorneys against Republican editors were frequent; Democratic lawyers were discountenanced and frowned upon.56
The county courts and superior courts controlled the admission of lawyers to the bar and, as judges were Federalists to a man, their atti- tude toward Republican candidates can be imagined. Republicans rightly complained that judges could not spend the morning writing in- flammatory political strictures, and then coolly decide the legal differ- ences between two opposing partisans, with one of whom the judge might have had a rankling newspaper controversy. Certainly, Republi- can editors tried for libel were given scant justice by judge or jury.57 Impartial, not "Irish," juries were demanded by a writer in the Litch- field Witness who asked:
Is there to be no sanctuary left against the rage of party? Is it not enough that our social circles and our very meeting houses are pervaded by its influence? 58
Friend and foe, reactionary and reformer alike, saw the necessity for judicial reform. Republicans cried out, as the years went by, for a writ- ten constitution which would plainly define the jurisdiction of the vari- ous courts, which would make the judiciary a co-equal branch of the government dependent on the organic, not statutory, law, and free it from all dependence on the Legislature or politics. Here they had one of their soundest practical arguments for a written constitution.
Long tenure in all offices might be said to have been the Connecticut rule. Governors, lieutenant governors, secretaries, treasurers, and coun- cilors held office year in and year out. Congressmen served many terms; representatives, elected semiannually, often sat for their towns from
56 Church Mss .; cf. Barstow, New Hampshire, p. 424, for similar conditions in that state.
57 See Note at end of Chapter VII.
58 Quoted in Mercury, Nov. 14, 1805.
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THE WORKING GOVERNMENT
twenty to thirty sessions. Even the annually appointive officers, judges, sheriffs, school commissioners, generally had a good-behavior tenure. Mayors, town clerks, selectmen, and constables were likewise rewarded by numerous re-elections.59
Strangers remarked this stability in a government so apparently Re- publican. Later writers have noted enthusiastically the long terms as evidence of a grateful people.60 Republican reformers accounted for this permanence in office because of the splendid political organization, the election system, suffrage qualifiations, and use of patronage. Today one sees in this bureaucracy a flaw in the state's democracy, and wonders if there might not have been a ruling class, which governed while the people voted and boasted of their pure democracy. No less a Federalist than David Daggett, in describing the government before the Revolu- tion, said:
This state, and many others, were under a most perfect aristocracy-The name truly we disowned, yet quietly submitted to a government essentially autocratic.61
Certainly there was no change in the ruling personnel in church or state in 1776, nor until the political revolution of 1817-1818.
Federalist writers lauded the long periods of official service as the basis of the state's stability and excellent administration. Dr. Gale in 1782 argued in its favor, as experience made men expert in the duties of their office, attacking the clause in the Articles of Confederation which prevented a member from sitting in Congress more than three out of six years.62 Judge Swift wrote:
A sentiment has for a long time been impressed on the minds of the people, that it is best for the community to continue in office all persons who have once been honoured by their suffrages in case they continue to merit
59 Space does not permit a consideration of the impressive number of town officials who were annually elected, but who often served unusually long periods. One cannot overlook the frequency with which certain names appear. It would not be difficult to compile a list of the influential governing families by towns.
60 Cf. Baldwin in Amer. Hist. Assoc., Report (1890), p. 94.
61 Daggett, Oration (1787), pp. 5-6. Cf. "But Connecticut was federalist to the backbone, Roger Sherman in New Haven, the Wolcotts in Litchfield, the Cham- pions in Colchester, William Samuel Johnson in Fairfield, Ellsworth in Hartford, the Trumbulls and Huntingtons in Norwich-the state was under an oligarchy in- deed; and so it continued until the alliance of toleration and the democrats over- threw it." Oration by Arthur L. Shipman, in Gilman, Norwich, p. 113.
62 Brief Remarks, p. 30.
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CONNECTICUT IN TRANSITION: 1775-1818
their confidence. ... This noble sentiment seems to be interwoven in the character of the people, and has a powerful tendency to render public offices secure and permanent.63
Noah Webster assured his readers that rotation in office did not pro- tect a state from the cupidity of public servants if the experiences of other states served as a guide.64
Men came to regard their civil offices in the light of freeholds. Those who opposed their re-election were dangerous innovators, trying to subvert the constitution, law and order. True, their rule was beneficent. The state was honestly governed, at least there was said to be relatively little legislative corruption. Administration expenses were small, salaries being at a minimum. Republicans hardly denied these advantages, yet in the name of democracy demanded reforms which would result in more frequent changes in office.
Closely associated with the government, and in part explaining the long tenure of offices, was the system of nomination and election. To the foreign observer, this system appeared to represent the very acme of democracy. Kendall noticed that town officers were elected by the freemen; ministers by their congregations; schoolmasters by the school committees; inferior militia officers by the privates; and state officers, town representatives, assistants, and Congressmen by the freemen in town meeting. He concluded enthusiastically: "Every public trust and office in Connecticut is elective." 65
Kendall had neither time nor the desire to look behind the forms of democracy, or he might have discovered a ruling aristocracy. Abraham Bishop overshot the mark, but still came close to the truth, when he declared: "We have lived in a State which, exhibiting to the world a democratic exterior, has actually practiced within itself all the arts of an organized aristocracy, under the management of the old firm of Moses and Aaron." 66
One learns of the existence of this aristocratic feature by a discern- ing reading of newspapers, sermons, and political pamphlets; certainly not by reading the Federalist accounts of the government's stability, the permanence of officers, and the freeman's delicate feelings regarding the sacredness of nomination and election, and his determination to re-
63 System of the Laws, I, 83.
64 Oration, July 4, 1802, pp. 20 ff.
65 Kendall, Travels, I, 27.
66 Bishop, Oration (1804), p. 20.
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THE WORKING GOVERNMENT
ward only men of inherent, proven worth. The Puritan might hate king and bishop, but in Connecticut he allowed a rule of the educated, well- born, and respectably wealthy. Their rule was benevolent and probably half unconscious, even to themselves. Yet it was not the less real, as was clearly demonstrated when they were forced to defend their privileges in the name of the Federalist party against an inflood of democracy which came with the diffusion of political education. Reformers were to learn that this class was intrenched behind an impregnable barrier of statutes, patronage, and election devices, which laughed to scorn Dwight's and Swift's platitudes regarding a government popularly con- trolled.
On the third Monday of September the freemen met in town meet- ing to select their representatives and to nominate twenty assistants and fourteen (later sixteen) Congressmen.67 On the Monday after the first Tuesday in April the freemen voted for the state officers: representa- tives, twelve assistants from the list of twenty, and seven Congressmen from their nomination list. The freemen's meeting was presided over by an assistant, a justice, or constable. Rarely would a town be without a justice, so generally did this nominee of the Legislature preside rather than the elective constable. Usually the meeting was opened with prayer by a Congregational minister. This was the invariable rule before 1800; but when certain towns became "Jacobean strongholds," this bit of formality was not deemed essential. In other towns to proceed without prayer would almost invalidate the proceedings.68 Some of the praying was, no doubt, as the Republicans claimed, political. It might be vague or as plain as that of the Hartford cleric: "If you choose such men to rule over you, the Lord have mercy on you." Robbins, who so honestly feared Republicanism, must have found it difficult to pray neutrally, for, after noting in his diary that he had offered prayers at the election, he concluded: "I think this last effort of Democracy, through the mercy of our fathers' God, will meet with a great defeat." 69 While Republi- cans did not deny the clergyman the right to vote, they suggested that it would be tactful in him to absent himself, for his vote would rarely turn the result and he would thereby free himself of the allegation that he was influencing the vote.
67 For election laws, Statutes, pp. 244-251; Public Laws, pp. 48, 78.
68 Sharpe, Oxford, p. 168; Robbins, Diary, I, 354; Courant, Sept. 29, 1808; Mer- cury, Sept. 25, Oct. 2, 1801.
69 Diary, I, 472.
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CONNECTICUT IN TRANSITION: 1775-1818
Voting for representatives and state officers was by secret ballot, though the secrecy was impaired by the moderator's right to inspect folded ballots to prevent stuffing.7ยบ Nominations of assistants and Con- gressmen were made in open meeting by any freeman. Republican charges of control by minister, deacon and justices described it as a "deacon's seat" nomination. At any rate, to openly name an undesirable candidate required a boldness only possible in men politically and finan- cially independent. According to Bishop, numbers of freemen ceased to attend the elections, feeling that the method of nomination defeated the purpose of election. The vote for assistants and Congressmen could be made secret only at the expense of casting as a blank ballot one of his twelve votes. Another cause of complaint was that these important offices were balloted for late in the afternoon when many of the free- men, tired of the long day, had gone home.71 Hence the Republican poll for representatives was much larger than the vote for councilors. Plain- tively did Republican leaders request their adherents to remain to the last. Election results were certified by the clerk and sent to the Legisla- ture, thus, as Republicans complained, keeping the people ignorant of the result for weeks.
The elections were conducted with decorum.72 They were not dis- graced with riots, bribery, and open corruption, as were the English elections. Drinking, however, was common, especially as in some places it was customary to treat the selectmen. Corruption in the way of il- legal voters, crooked voting, proxy voting, printed tickets, bribery, un- due influence, receiving of bribes, and the dispensing of spirituous liquors to voters were all guarded against by corrupt-practices clauses, which provided penalties as high as a fine of thirty-four dollars. The majority with their own justices to enforce the law could easily prevent Republican corruption. The danger lay in the interpretation; undue in- fluence might mean one thing for a deacon and quite another for a Re- publican demagogue. The chief barriers to actual corruption lay in the frequency of elections, small salaries, and the law-abiding nature of the people.
70 While election by ballot was provided for in 1639, it was not used in prac- tice. A law of 1670 allowed choice by acclamation, and not until 1814 was it defi- nitely provided that election must be by ballot. Public Laws, p. 162; Baldwin in Amer. Hist. Assoc., Report (1890), p. 89.
71 Bishop, Address (1800), p. 67; Mercury, June 11, 1801; Apr. 1, 1802.
72 Swift, System of the Laws, I, 67, 153; Dwight, Travels, I, 225, 231; Mercury, Oct. 28, 1802. Corrupt-practices act, Statutes, pp. 244-246.
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THE WORKING GOVERNMENT
Republican local successes so worried the major party by 1801 that extra precautions were taken to prevent the political defection of the towns. A new election law, the "Stand-up Law," was framed by the Council and with some difficulty forced through the Assembly.73 This law provided that the freemen's meeting should be presided over by an assistant, a justice or the senior constable, or by a person selected by a majority of the justices and constables present. In this way there was not the slightest danger of a Republican moderator. A dangerous con- trol over the meeting was given this chairman, backed by justices ready to enforce his decisions by fines, or binding over a "tumultuous free- man." The new method of nomination was considered especially in- famous. Any freeman could theoretically nominate a man, but voters must stand or raise their hands to be counted. To enable a freeman to keep track of his votes, he was given twenty slips of paper for counters, one of which he was supposed to drop at every vote. Tellers appointed by the moderator counted the votes aloud and reported to the moder- ator, who audibly repeated the number while recording it on the min- utes.
No Federalist measure created more of an uproar. As leading Re- publicans like Gideon Granger, Elisha Hyde and Joseph Wilcox pointed out in debate, complete supervision of elections was in the hands of deeply interested justices. Everything depended upon tellers who were independent of the freemen and strongly Federalist. Aside from inten- tional errors, it was easy to err in the frequent counting of a crowded room or gathering on the green.74 Whether a freeman voted more than twenty times could not be readily known, nor was it as easy as under the old way to detect illegal voters. All secrecy was destroyed; squire, minister and candidate knew how every individual voted. Federalists contended that the law saved time in that election hours were cut in half; then, too, that a man not independent enough to vote openly, with- out fear or favor, was unworthy the suffrage. They refused to believe that banker, manufacturer or general merchant could control a farmer's or laborer's vote, or that social or religious fears would prevent a free
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