USA > Connecticut > Connecticut in transition: 1775-1818 > Part 27
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32
245
COMPLETION OF THE REVOLUTION
ing of population toward the larger cities.18 The privilege which the committee draft gave the General Assembly to reduce the representa- tion in some cases was struck out by a vote of 112 to 72. This vote was itself an example of small-town tyranny. New towns, it was agreed, should have only one representative. Yet old towns, from which the new town should be formed, were to retain their full representation unless they consented to its reduction-an unlikely contingency.
One provision required that all debates be public, save when the public good required secrecy. McClellan objected to a gallery in the Council Chamber because it had not been customary. It was a small body, conducting business in an informal way. Some of its members were plain, uneducated men, not orators, but sound counselors. If forced to speak before crowded galleries, their usefulness would be curtailed. James Lanman argued against secrecy. He would not accuse the Coun- cil. But who knew whether they plotted the ruin of the state, engaged in treasonable correspondence, or only busied themselves in promoting the public welfare? He declared: "There should be no secrets between the representative and his constituents. Why should an agent act with- out letting his principal know what he was doing?" The result was that the provision was retained in the constitution, and the new galleries in the Council were left undisturbed. Another Republican plank was se- cured.
The Senate, as the Council was rechristened, was to consist of twelve members according to the committee's draft, with the provision that the General Assembly could within two years after the next census in- crease the number to twenty-one, and district the state. Regarded as radical, this called forth great opposition. On a vote, it was lost by forty-five to one hundred and thirty-six. Treadwell's motion to include the governor and lieutenant governor in the Council found only fifty- six supporters. Timothy Pitkin with sound arguments advised against allowing the General Assembly to determine the number. Other state constitutions had definitely limited the number of their senators. If the state was to be districted, he believed that the districts should be de- fined in the constitution, not by the legislators. Judge Edwards con- curred. This should not be left a bone of contention between the people
18 For instances: Union with 752 people and a tax list of $17,000 had as much weight as New Haven with 7,000 population and a list of $133,000. Pease and Niles, Gazetteer, p. 301.
246
CONNECTICUT IN TRANSITION: 1775-1818
and the Legislature. Alexander Wolcott voiced similar sentiments. Moses Warren moved that the number be increased to twenty, elected by districts. On a division, his motion only commanded forty-eight votes. Motions to fix the number of senators at sixteen and fourteen both failed. Finally it was decided that the number of senators should re- main as of old and that they should be elected at large.19 In a later ses- sion Alexander Wolcott moved for election by districts, losing by 68 to 115. This was a keen disappointment to all the old Republicans who had long called for a democratic districting of the state.20
Other sections were approved readily. Each House was made the judge of its own members, discipline and rules. Votes were to be pub- licly canvassed by the treasurer, secretary, and comptroller. Each House was to keep a journal, publish proceedings and take yea and nay votes on demand of a fifth of the members. The usual freedom from arrest during the session and while journeying back and forth was confirmed, as well as immunity for remarks made in debate. The House of Repre- sentatives was empowered to select its speaker and clerks. A majority was to constitute a quorum in either House. In case of a tie vote for senators, decision was to rest with the Lower House.
Article 4 dealt with the executive department.21 In its reported plans the committee incorporated certain Republican principles, which were accepted by the convention. It was provided that the electors (not free- men) should meet in April in town meeting and vote for the governor, lieutenant governor, secretary and treasurer. The ballots were to be counted publicly, the result declared by the town moderator and certi- fied in a report by the town clerk to the secretary of state. The votes should then be canvassed by the treasurer, comptroller, and secretary in the case of governor or lieutenant governor, and by the secretary and comptroller in case of the treasurer, etc., and then reported to the Gen- eral Assembly on the first day of its session. The General Assembly would then announce the result. In case no man received a majority, both Houses in joint session selected without debate and by ballot one of the two highest. This enactment did away with the joint committee of both Houses as the canvasser of votes, as well as the secret counting
19 Roger Welles (Conn. Mag., V, 162) compares the Assembly with its two delegates from every town, regardless of wealth or population, with the national Senate, leaving the state senate the popular chamber.
20 Journal, pp. 57-59.
21 Journal, pp. 35 ff. See Baldwin in New Haven Hist. Soc., Papers V, 215-216.
247
COMPLETION OF THE REVOLUTION
of votes. Henceforth there could be no charge of corruption in count- ing, or in the destruction of ballots afterward.
The governor, it was provided, should be an elector of thirty years of age, although the conservative committee had recommended thirty- five years. The same qualifications held for the lieutenant governor, who would act as governor in case of the latter's absence, resignation, death, or refusal to serve. The governor's salary, as well as the salaries of the lieutenant governor, senators, and representatives, was left a sub- ject of legislation, but not dependent on annual votes. This in itself made the governor more independent. He was empowered to act as captain-general of the militia save when in federal service. This proviso was seriously objected to by Federalist writers, but defended by Repub- licans as rendering impossible another disgraceful militia struggle.
The governor could call on departmental heads for reports, and was expected to inform the General Assembly on all state matters, and recommend legislation. In case of a failure to agree on a date of adjourn- ment, the governor was allowed to adjourn the chambers to a stated day. He was responsible for the faithful execution of the laws. He signed and sealed all commissions. The committee favored an extensive right of reprieve, which the convention limited by excepting impeachment cases and subjecting all others to review by the next session of the Legislature. A slight power of suspensive veto was allowed by a vote of 127 to 52. Any bill after passing both Houses was submitted to the governor for approval, and then to the secretary for promulgation. If the governor returned the bill unsigned to the House of origin within three working days, it must again be passed by both Houses, when it would become law without the governor's signature.
While the governor's powers were still slight as compared to later American policy, they marked a great extension over those previously held by the chief executive. The governor was no longer feared, but as the head of an independent executive occupied a position of power as well as honor.
The lieutenant governor, like the Vice-President of the United States, was made the presiding officer of the Senate. As such, he had the privilege of debate when the body sat as a committee of the whole, and a vote in case of a tie. The secretary was the recorder of documents, the keeper of the seal, and the custodian of legislative acts and orders. Further duties might be imposed by law. The treasurer assisted the sec-
248
CONNECTICUT IN TRANSITION: 1775-1818
retary and comptroller in canvassing the vote and was responsible for the state moneys, disbursing them according to law on warrants regis- tered by the comptroller. The comptroller, an annual appointee of the Legislature, was commissioned to settle and adjust public debts, pre- scribe the mode of keeping accounts, and act as an ex-officio auditor. The recent legislation providing that a statement of all receipts, pay- ments, funds and debts should be published from time to time was in- corporated as a matter of course. The status of these officers was scarcely modified by the constitution save in connection with the count- ing of the vote. Their duties, however, were defined so that they were generally known.
Sheriffs were to be appointed as formerly by the General Assembly and were subject to its removal. They were bonded for the faithful per- formance of duties defined by law. In case of a vacancy, an appoint- ment could be made by the governor to hold until the next session.
The committee reported a plan for the permanence of the judici- ary.22 Embodying Wolcott's inaugural suggestion, it was the product of the keenest legal minds of Connecticut. The judicial power was de- fined as invested in a supreme court of errors, a superior court, and such inferior courts as the General Assembly might establish. The justices of the peace as well as the judges of the various courts were to be ap- pointed by the General Assembly in such number as the work of the diverse counties required. Their powers and jurisdiction were to be de- fined by statute. Supreme court and superior court judges were to re- tain office during good behavior or until the retirement age of seventy years. They were made responsible through impeachment or removal by the governor on address of two-thirds of both Houses. The com- mittee herein incorporated the best principles of the various judicial systems, while retaining the essentials of the old organization. They guarded against another Jeffersonian experience with a reactionary, hostile judiciary, by making use of the British method of address, which was in vogue in some of the other states. This would enable the Leg- islature to eliminate a judge who was out of harmony with the time. No article which the committee reported better evidenced their con- structive ability.
This section did not pass without several tests of strength. Alexander Wolcott proposed an amendment which would have meant the re-
22 Journal, pp. 39 ff., 89-90. See Reasons for an Independent Judiciary in Conn. Journal, Aug. 4, 1818.
249
COMPLETION OF THE REVOLUTION
tention of the yearly appointments. He felt that it was a novel doctrine for which the people were not ready. He did not believe that it would raise appointees above partisan motives and influence; nor could he understand why a judge more than any other officer should hold for good behavior. In England it might be well, for it enabled a judge to oppose an extension of the prerogative. Judicial functions were more important than those of representatives. But who would make the latter independent? Judges should be just as responsible to the people. Henry Terry, a Federalist, argued that the experience of other states should have weight. There were no complaints of the judicial tenure where this principle was in force. Even in Connecticut the formal reappoint- ment of judges had the effect of giving the judiciary permanence. In states like Rhode Island and Vermont, where the judiciary is dependent, complaints of partisan judges are rife. The same conditions might pre- vail under rotation in Connecticut. A permanency would serve the peo- ple as much as in England, for it would safeguard them from a legislative if not a regal prerogative. Root spoke in accord with Terry.
While Nathan Smith of the Toleration group did not question Wol- cott's motive, he was surprised that one could believe "that a judiciary deriving their existence from the Legislature; depending on the will of that body for their support, and that of their families; and liable to be removed without cause, and cast destitute upon the world, if they do not execute its mandates, however oppressive or unconstitutional, will stand as an independent umpire between man and man and administer justice." The two-thirds majority of both Houses was a sufficient pro- tection. When a judge lost the people's confidence, his removal would not be difficult. Again, the Legislature would have a bridle in their con- trol of judicial salaries. Jefferson in the Virginia constitutional con- vention had argued for this principle. With a touch of cynicism, he suggested, Jefferson did not disregard the people's liberties. In all Ameri- can constitutions in which this or similar clauses were in effect, practice bore out the views of jurists that an independent judiciary was the greatest safeguard of liberty. The New Haven Address in which the man from Middletown was personally interested had demanded an in- dependent judiciary. Newspapers, reiterating this demand, had assailed the government. Without a just judge, the poor man would be oppressed and the minority party deprived of its chief protection. He prayed that "political considerations should never enter the Temple of Justice,- Justice would flee from such unhallowed ground." His argument struck
250
CONNECTICUT IN TRANSITION: 1775-1818
the mark. It displayed in a glaring light the inconsistencies of some of the radical Republicans. Yet political reasons explain the attitude, not of Smith, one of the most learned lawyers, but of some of the reactionary Federalists.
Treadwell declared that, if the committee's report was accepted, this would be the cornerstone and glory of Connecticut, as it had been that of England. English judges did not buy or sell justice. A permanent judiciary would tend toward learned, uniform decisions consistent with precedent. It would add certainty in the law, to the satisfaction of en- lightened attorneys. Aaron Austin reported that for thirty years he had inclined toward just such a change. The question of a good-behavior tenure had often been discussed. Then, there was less reason for an insistence on permanency. He recalled how Ohio had once turned out all her judges.
Alexander Wolcott again spoke in favor of his amendment. He voiced astonishment that men who had always depicted the excellence of the government should now be loudest in calling for this change. Temperament, not tenure, was the test of a true judge. It would be a departure from the democratic principle of rotation in office. In the New Haven convention the subject, he confessed, had not been as thoroughly considered. Furthermore, it was a party business in that instance, when "writhing as they thought under oppression," the delegates were for any change, even life judges. In answer to the argument that a de- pendent judge would not declare a legislative act unconstitutional, Wol- cott offered as his opinion that any judge deciding a law unconstitu- tional should be expelled. He denied that in the United States Supreme Court it was anything but an usurped power. As for the amount of litigation, that depended solely upon the people and lawyers. In Eng- land, he begged to add, the law was so expensive that a poor man's only chance was to be dragged into court as victim. On a call for the yeas and nays, he found only sixty-seven supporters.
A motion by Moses Warren for a five-year tenure was likewise negatived. James Lanman, another Democrat, moved for a three-year term. This too was defeated by a vote of 98 to 88. James Stevens then proposed that the words "during the pleasure of the General Assembly" be substituted for good behavior, only to be defeated by 105 to 76. Enoch Burrows, another original Republican, in a last attempt endeav- ored to have struck out the two-thirds provision, so that a legislative recall would require only a majority vote.
25I
COMPLETION OF THE REVOLUTION
On the question of the whole section the report, with slight verbal modification, was accepted by a vote of 111 to 78. The one hundred and eleven included all the Federalists and Tolerationists, whereas the seventy-eight were generally Republicans. It was evident that the moderate Republicans, liberal Federalists and Tolerationists controlled the convention. The "Revolution" was essentially the work of the in- dependent voter rather than of the Republican party.
It is not difficult to understand the Federalist support of this meas- ure, for all along men like Zephaniah Swift and President Dwight had pointed to the judiciary as the weak spot in the government. The men of unreasoning Federalism had not criticized this institution, but the revolutionizing of the judiciary had aroused their fears. Since the re- form party came into power, Calvin Goddard and Simeon Baldwin of the superior court had been displaced, along with some twenty-five county court justices, ten probate judges and, it was charged, about six hundred justices of the peace. Not until 1819 were the other Federalist members of the superior court retired.23 These changes satisfied the Re- publican opportunists. Controlling the Legislature, they were supreme. It would lead to the belief that Federalist charges of office seeking were not in part true, in view of the hesitancy of Republicans to favor Wol- cott's suggestion relative to the judiciary. Their obstructive tactics, however, did not defeat the independent judiciary.
The suffrage qualification as adopted in Article 6 slightly modified the recently enacted law. All persons who had been admitted prior to the ratification of the constitution were guaranteed the suffrage. The voting privilege was granted to every white male citizen of the United States of good moral character, who had gained a settlement in the state, reached the age of twenty-one, and had resided in the town at least six months, providing that he possessed within the state a freehold of seven dollars a year; or had performed militia service within the past twelve-month, if not legally excused from such service; or had
23 Courant, July 14, 1818. The Conn. Herald, Sept. 15, believed that the late Legislature had been generous to a fault, leaving two-thirds of the offices in Fed- eralist hands. Trumbull said, in his Address, that with a few exceptions there had been a clean sweep of sheriffs, judges of common pleas, justices, probate judges, court clerks and even turnpike commissioners. Zephaniah Swift (1801), John Trumbull (1801), William Edmond, Nathaniel Smith (1806), James Gould (1816), were all retired from the superior court in 1819; Jeremiah Brainerd (1806-1829) and Stephen Hosmer (1815-1833) were retained. Sedgwick, Litchfield Bar, p. 2; Loomis and Calhoun, Judicial History, p. 137.
252
CONNECTICUT IN TRANSITION: 1775-1818
paid taxes during the past year.24 On taking the freeman's oath he would be made an elector by the clerk and selectmen of the town. Treadwell's motion to strike out the militia qualification was defeated, 113 to 67. A motion to associate, as in the past, the civil authorities with the select- men on the freemen's board was defeated by 91 to 82. Virtually this meant manhood suffrage.
Voting privileges were forfeited on conviction of bribery, forgery, perjury, duelling, fraudulent bankruptcy or theft. Treadwell seems to have been responsible for the inclusion of duelling, for he had tried to include an anti-duelling provision in the bill of rights. Every elector was made eligible to any office except as otherwise provided in the con- stitution. In principle this was not new. All votes were to be by written ballot. The first Monday in April was established as election day. All freemen were immune from arrest on any civil process on their way to and from the polls. To prevent disorder at elections, it was ordered that laws should be passed prohibiting under adequate penalties all undue influence, bribery and tumultuous conduct. The disgraceful conduct at the late Hartford town meeting had deeply impressed those who dreaded a broader suffrage.
The seventh article, dealing with religion, was one of the greatest importance.25 With this omitted, the constitution would not have been approved by the dissenter or the ardent Republican. In this separation of Congregationalism from the state lay their chief interest. Baptist resolutions and petitions, passed and circulated while the convention was in session, had threatened that a constitution failing to embody their views on religious toleration would not command their support.26 This had an effect, especially as the Methodists were known to be of like mind. The views of these dissenting elements had become the vital part of the Tolerationists' political philosophy. Wolcott had expressed this principle in his address to the General Assembly, so that on this question the Tolerationists stood committed.
The drafting of this article was assigned by the committee to Gideon Tomlinson and Joshua Stowe, two Jeffersonian Republicans.27 Their report closely followed Wolcott's wording:
24 Journal, pp. 46 ff.
25 Journal, pp. 49 ff.
26 Resolutions of Baptist Convention at Hartford in Mercury, Aug. 11, 1818; for other Baptist and Methodist resolves, see Mercury, Aug. 25, Courant, Aug. 11, 1818; Greene, Religious Liberty, p. 486.
27 William Hungerford, one of the committee, so informed Trumbull. Histori- cal Notes, p. 57, footnote.
253
COMPLETION OF THE REVOLUTION
(1) It being the right and duty of all men to worship the Supreme Being, the Great Creator and Preserver of the universe, in the mode most con- sistent with the dictates of their consciences; no person shall be compelled to join or support, nor by law be classed with, or associated to any congre- gation, church or religious association. And each and every society or de- nomination of Christians in this State, shall have and enjoy the same and equal powers, rights and privileges; and shall have power and authority to support and maintain the Ministers or Teachers of their respective denomi- nations, and to build and repair houses for public worship, by a tax on the members of their respective societies only, or in any other manner.
(2) If any person shall choose to separate himself from the society or denomination of Christians, to which he may belong, and shall leave a writ- ten notice thereof with the clerk of such society, he shall thereupon be no longer liable for any future expenses, which may be incurred by said society.
It has been said that this article was drawn up by Rev. Asahel Morse, a Baptist preacher representing Suffield. Such an assertion appears groundless.28 Morse offered a substitute section for the bill of rights, which had been rejected:
That rights of conscience are inalienable; that all persons have a natural and indefeasible right to worship Almighty God according to their own consciences; and no person shall be compelled to attend any place of wor- ship, or contribute to the support of any minister, contrary to his own choice.
While his substitute did not bear any more similarity to the wording adopted by the committee than many Baptist resolutions, the principle was the same. The assertion of his authorship can be accredited only to a sectarian desire to assume the whole credit for the inclusion of the religious toleration clause. Morse at best was more of a politician than preacher, thereby violating the very principle of which he was the re- puted standard bearer.
The principle of voluntary support was embodied, while at the same time the tithe system of Congregationalists and Episcopalians was legal- ized. Freedom of conscience was guaranteed to all men, but equality of rights only to Christians. It completely separated church and state in such a way that it would practically cause the temporary destruction of the societies. This the Congregationalists of the convention would not suffer.
The article was hotly contested by the Federalist leaders. Stowe, who was not afraid of a dissolution of the old societies, declared that "if this section is altered in any way, it will curtail the great principles for
28 Burrage, History of the Baptists, pp. 132-133; Trumbull, Historical Notes, P· 57; Greene, Religious Liberty, p. 490.
254
CONNECTICUT IN TRANSITION: 1775-1818
which we contend." On being submitted, the first section was affirmed by 103 to 86 votes. A motion to strike out the second section was lost by 84 to 105. These votes exactly register the relative strength of the parties, and measure the power of the intrenched minority. Treadwell agreed that it might be well to permit any mode of worship, but he would not draft such a principle in the constitution. It might even be interpreted to cover heathenish image worship, like that of the ancients.
Nathaniel Terry submitted two amendments to the first section which were readily affirmed without a vote. One provided that every person belonging to a located society remained a member until his con- nection had been legally dissolved. According to the other amendment, a tithe could only be laid by a majority of the legal voters in a legally announced society meeting. These amendments were regarded as nec- essary to prevent an immediate demoralization, for the Congregational- ists actually feared that, the legal ties removed, numbers of their breth- ren, especially young men, would evade their society tax. The easy passage of these amendments can be ascribed to Episcopalian influence.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.