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43 Samuel Hugh Brockunier, The Irrepressible Democrat, Roger Williams (New York, 1940), p. 92.
44 Hosmer, ed., Winthrop's Journal, I, pp. 108, 118.
45 Andrews, Col. Period of Am. Hist., I, p. 375.
46 John Underhill, "History of the Pequot War," Collections of the Massachusetts His- torical Society (Boston, 1837), series 3, VI, p. 6.
47 Hosmer, ed., Winthrop's Journal, I, pp. 229-36; DeForest, Indians of Connecticut, pp. 91, 98.
48 Hosmer, ed., Winthrop's Journal, I, p. 234.
49 Brockunier, Roger Williams, p. 95.
50 Brockunier, Roger Williams, pp. 95-97.
51 Lion Gardiner, "Relation of the Pequot Warres," Collections, Mass. Hist. Soc. (Cam- bridge, Mass., 1833), ser. 3, III, pp. 143-47.
52 Conn. Col. Rec., I, pp. 9-10.
53 Gardiner, "Pequot Warres," p. 149; John Mason, "A Brief History of the Pequot War," Collections, Mass. Hist. Soc. (Boston, 1826), ser. 2, VIII, p. 128.
54 Mason, "Pequot War," pp. 133-36; Underhill, "Pequot War," p. 23.
55 Ibid., p. 25.
56 Mason, "Pequot War," p. 141.
57 Ibid., pp. 141-42.
58 Ibid., p. 144.
59 Conn. Col. Rec., I, pp. 10-11.
60 Benjamin Trumbull, History of Connecticut (New London, [Reprint] 1898), I, p. 60; Mason, "Pequot War," p. 148.
61 Conn. Col. Rec., I, pp. 11-20; Howard Bradstreet, "The Story of the Pequot War, Re- Told," Conn. Ter. Comm. Publ., pp. 28-30.
62 Isabel Calder, The New Haven Colony (New Haven, Conn., 1934), p. 111; E. H. Bying- ton, "William Pynchon, the Founder of Springfield," Papers and Proceedings of the Connecticut Valley Historical Society, II (Springfield, Mass., 1904), pp. 25-26.
63 Andrews, Col. Period of Am. Hist., II, p. 177; Isabel Calder has done the basic re- search on the New Haven colony, and it is on her The New Haven Colony, previ- ously cited, that the following summary is based; see also, Isabel Calder, ed., Letters of John Davenport: Puritan Divine (New Haven, Conn., 1937), which includes a short biographical sketch of Davenport.
64 Henry Whitfield founded Guilford in September, 1639; Peter Prudden, Milford in February, 1640; and Nathaniel Turner, Stamford in July, 1640. Robert Feake and Daniel Patrick founded Greenwich in July, 1640, but two years later Patrick sub- mitted to the jurisdiction of New Netherlands. The controversy that followed became entangled with the general conflict of the English and the Dutch. Greenwich became a part of the town of Stamford on October 6, 1656.
65 Calder, New Haven Colony, pp. 53-56.
Chapter III The Basis of Government
A NATURAL OUTGROWTH of experience was an attempt to arrange the affairs within Connecticut in such a way as to maintain the "peace and union" of its people and to preserve "the liberty and purity of the gospell."1 There was recognition, too, of the need for the colonies of Connecticut, New Haven, Plymouth, and Massachusetts to form a "perpetual league of friendship" "for their mutual safety and welfare."2 Attempts to form such a confederation had been interrupted by the Pequot War, which had emphasized the need of such a union, but, also, had raised issues which delayed effectua- tion until 1643. By then, New Haven had established a framework of government; and Connecticut, whose rudimentary government under the March Commission had been somewhat refined by the General Court of 1637, had formed a fundamental law and had laid the basis for town government.
The Fundamental Orders
Thomas Hooker and his group came to Connecticut for economic opportunity and political relief rather than for religious freedom.3 Yet, it seems the fundamental problem of life for them, as for other Puri- tans, remained the salvation of one's soul, in the belief that only from this could stem the proper church and state arrangements. Polity and politics, then, were considered consequences of personal salvation rather than primary issues.4 The intent to maintain "the liberty and purity of the gospell" was a stratagem by which to secure the arrange- ments considered desirable.
Connecticut, therefore, adhered with fierce consistency to Puritan
42
HISTORY OF CONNECTICUT
theology, which differed from Calvin's essentially because the Puri- tan's God was limited to the terms of his presumed covenants with in- dividuals and groups, and, so, was to this extent less arbitrary than Calvin's God." The conception of a covenant, as expounded by the English writers John Preston, Richard Sibbes, and William Ames and by the Americans Thomas Shepard, Peter Bulkeley, and Samuel Wil- lard, was accepted as basic to organization of relationships among men.6 The Covenant of Grace was considered a legal compact, a personal one, between the individual and God. This internal pledge made possible a similar legal compact between God and a group of the covenanted saints, as a unit. This was a distinct compact for it was external and public, although enabled by the previous private one. If these few saints strictly performed the terms of the covenant, God, because of His agreement, would bless the whole country in which the covenanted few lived. They thus became a "saving remnant" organized to obtain prosperity for all in the federal or covenanted state; and this, the Puri- tan definition of "charity," was the justification for government under the national covenant and a means by which to secure particular eco- nomic and political ends.7
The early settlers in Connecticut accepted this federal theory, yet they intended to improve over the Massachusetts "modell" as they built their own City of God, for politically the group had wanted relief from magistrates.8 When Thomas Hooker outlined his concept of authority, as a base for a state, in a sermon delivered, perhaps, to the General Court on May 31, 1638, he observed that "the foundation of authority is laid in the free consent of the people," and asserted that "the choice of public magistrates belongs unto the people."9 It is not surprising to find Hooker articulating this concept, since he had been dissident in both England and Massachusetts. Calvin had not championed popu- lar rights and had insisted on passive obedience as a general duty. Cal- vinists had not departed from this when they constituted a strong enough majority to establish a theocracy. However, whenever they con- stituted a discontented minority seeking a changed political situation, they discarded Calvin's tenet and, instead, defended an obligation to resist authority, using popular rights as a justification.1º Consent of the people had been used as a referent for the concept of authority in the
43
THE BASIS OF GOVERNMENT
Middle Ages and had been coupled with the right of resistance in Re- formation political theory.11
Hooker's concept of consent had points of contact with social con- tract theory in that it prescribed the right of the governed to determine
(Courtesy Mills Coll., Conn. State Lib.)
WOODBURY-GLEBE HOUSE
among themselves the conditions and purposes of political association. Of "those who have the power to appoint officers and magistrates," Hooker declared, "it is in their power, also, to set the bounds and lim- itations of the power and place unto which they call them."12 This was a departure from Massachusetts theory which was expressed by John Cotton's contention that magistrates had no popular responsibility be- cause their offices and functions were divinely inspired. This Massachu- setts theory was explicitly undemocratic; in practice, however, popular responsibility soon came to be exacted in Massachusetts through elec-
44
HISTORY OF CONNECTICUT
tions.13 The implications of Hooker's theory, in contrast, were demo- cratic, yet, as his ideas were supposedly implemented in the Fun- damental Orders and in practice, there was little popular control in Connecticut.
The Fundamental Orders, as they were adopted January 14, 1639, consisted of a preamble and eleven fundamental laws. These conformed to a large extent to provisions and practices already in effect in other colonies or in Connecticut. The provision of the Orders, for example, that "all that are admitted freemen" may vote for the magistrates (Ar- ticle 1) was a requirement in all Puritan colonies, and in England, at that time, was a prerequisite for those in the wards who were allowed to vote for aldermen and members of the common council. Again, the provision that each local unit would have representation in a common council was characteristic of London and Massachusetts.14 Trial by jury and central jurisdiction over estates had been inaugurated in Connecti- cut as early as 1637.15 The Fundamental Orders differed from the ar- rangements of other colonies by being the work of three settlements rather than of one, by having a more orderly arrangement, and by being ·presented in the simple legal language of Roger Ludlow.
The preamble was a civil covenant with a strong religious basis. The general purpose of government was acknowledged to be the dispo- sition of the affairs of the people at all seasons of the year. Although the confederation and combination was entered into to maintain the church teachings and disciplines then practised, this, it would seem, was con- sidered separate from civil affairs which were introduced by the phrase "As also in our Ciuell Affaires." Such government was, however, es- tablished "according to God," whose plan had placed the people to- gether and whose word demanded an orderly and decent government for their peace and union. It would seem, also, that a conscious effort was made to form a contract which would bind all the settlers rather than merely those who were permitted to participate actively in its ini- tial acceptance and subsequent development. This is evidenced not merely by the phrase "for our selues and our Successors and such as shall be adioyned to vs att any tyme hereafter," but also by the coupling of "inhabitants" and "residents" in the preamble. This can hardly be considered redundant in view of the precise meaning given to the term
45
THE BASIS OF GOVERNMENT
"inhabitant" later in the Orders and so must be regarded as an aware- ness of the distinction between a mere resident and an admitted in- habitant. In the preamble, these terms together are synonymous with "people," a term which significantly does not appear in any of the specific laws. All settlers in the three settlements of Connecticut were to be "guided and gouerned according to such Lawes, Rules, Orders and decrees as shall be made, ordered and decreed."
The eleven orders provided for a General Court to meet twice yearly. In its first meeting of the year, its primary function was that of a Court of Election. Upon the conclusion of elections, however, it could proceed to other business. In its second regular meeting each year, the court was to make laws and attend to all matters of public in- terest. If conditions warranted, a special session could be called, gener- ally upon fourteen days' notice, if an explanation accompanied the call or was given when the court convened. The Court was to consist of magistrates and deputies. Initially, a lawful court required the presence of a moderator (who might be the Governor, the Deputy Governor, or one especially chosen), and at least four other magistrates. In 1644, the Orders were altered so that a General Court would be deemed lawful if the moderator and at least two other magistrates were present with a majority of elected deputies.16
The magistrates were elected for one year terms by an ingenious system. One who had not previously served as a magistrate could not normally be nominated unless his name had been submitted at a previ- ous session of the General Court. Secrecy of balloting for one properly nominated was secured by having each qualified voter submit a single paper on which would be written the name of the nominee, if his elec- tion were desired by the voter, or which would be left blank, if the voter opposed the choice of the nominee. Theoretically, there was no limit on the number of magistrates who could be chosen, inasmuch as anyone who received more votes than blanks was elected. There seemed no fear that there might be too many magistrates, but rather a fear that there might be too few. It was established that there must be at least six magistrates, and it was provided that if six people did not secure more votes than blanks, the six persons with the greatest number of votes would be considered elected.
46
HISTORY OF CONNECTICUT
In practice, it was difficult to secure election to the magistracy. Half of the number of magistrates elected before 1652 were drawn from the original members of the first magistracy formed under the Fundamental Orders. When it is observed that the new members in- corporated into the magistracy included such gentlemen as John Mason, George Fenwick, and Henry Wolcott, it seems clear that public affairs remained in steady hands. The rate of turnover in the magistracy be- fore 1658 was only eight percent. This increased in the next few years chiefly because the minimum number of deputies had been increased from six to fifteen in 1658. Few of the new magistrates had served as a deputy in any previous session of the Court. Most were men of position drawn from new settlements which had been established in Connecti- cut.17
The deputies, who were responsible for the selection of magis- trates, were themselves elected from among the freemen of their town who had taken the oath of fidelity and were selected by the vote of the admitted inhabitants of their town who had taken the oath of fidelity. Windsor, Hartford, and Wethersfield were to send the four deputies who received the greatest number of votes. A measure of proportional representation was implicit in the provision that towns added thereafter would be permitted a number of deputies in propor- uon to their number of freemen. In the twenty-year period following the enactment of the Orders, the ratio of deputies to magistrates in- creased as the number of towns increased until it approximated two to one.19
The power to convene the General Court at the appointed times rested ultimately with the freemen of the colony. If the Governor failed or refused to call the Court into session, his right and duty to do so de- volved first upon the Deputy Governor and then upon the magistrates. If none of these issued a call for the Court, it could be called into session by the majority vote of the freemen. This safeguard against tyranny is significant not merely as an indication of awareness of the historic prob- lem revolving around monarchs who failed to call popular assemblies into session but also in view of recent legislation in Connecticut which permits the General Assembly to call itself into session.20 The 1953 leg- islation serves to counterbalance any increase in power which the Gov-
47
THE BASIS OF GOVERNMENT
ernor might derive from the extension of his term of office. This seems but a continuation of the fear of colonial Connecticut which recognized a final, although limited, popular responsibility which was intended to serve both as a limitation upon the magistracy and as a bulwark to the power of the Court.
Under the Fundamental Orders, the Governor's power was further restricted by his short term of office, which was one year, and by the pro- vision that one could not succeed himself as Governor. The office of Governor was filled by that magistrate who received the greatest num- ber of votes in the Court of Election, except that he could not have been Governor the preceding year, must be a member of an approved congregation, and must have served as a magistrate. The chief function of the Governor was to serve as chairman of the Court, but his deputy or a chosen moderator could be substituted in this function. The pow- ers of the Governor remained weak, yet it was a desirable enough office to have been monopolized by John Haynes and Edward Hopkins, who succeeded each other from 1639 to 1655, except for one interruption in 1642 when George Willis was elected.21
It was the General Court which was intended to be the supreme power of the Commonwealth, however. The court alone was empow- ered to make and unmake laws, to grant levies, to dispose of lands, to question a magistrate or any person guilty of a misdemeanor, and to admit freemen. In addition, it could "deale in any other matter that concerns the good of this comon welth, except the election of Mages- trats." (article 10) Except that members of the Court were elected an- nually by the votes of a part of the settlers, there was no protection for the people against the Court, even, as it worked out, if it chose to alter franchise requirements and other arrangements of the Fundamental Orders.22
Although the implications of a logical development of the idea of popular consent are democratic in a modern sense, at the time of its im- plementation in the Fundamental Orders, the concept was consider- ably limited. It was republican, but not democratic. The Protestant po- litical thought of late sixteenth century France embraced aristocratic republicanism as a necessary alternative to embracing divine absolu- tism.23 In England, Milton seems to defend freedom of speech only for
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HISTORY OF CONNECTICUT
the elect and limits republicanism by suggesting a legislature which would be a self-perpetuating body with life-time tenure.24 When the Fundamental Orders were formulated, the popular base was expected to operate as it had in the Church, from which it was taken and applied to the state, where the members elected, but then were ruled by those elected.25 The cry of the times was not for democracy but for a new privileged class on the basis of attributes considered valid by whom- ever was making the plea;26 the Puritans assumed privilege proper for the elect.
The role of the electorate was specifically limited to selection and general delimitation of function. The delimitation of function in the Fundamental Orders severely circumscribed the power of magistrates, but left the elected members of the General Court to fill the vacuum. Their discretionary power was broad since they were expected to sup- plement the Orders with specific regulations and determinations upon the principles they could find or the analogies they could draw from the Bible.27 This submission to the superior judgment of select brethren was in keeping with the theory of the federal or covenanted state, where, if a core of saints administered the laws according to the covenant, com- pelling the greater number of unregenerate inhabitants to obey and thereby achieving external conformity to intrinsically right patterns of conduct, all would be benefited, with the result justifying the coer- cion.28 The real power of the Court, then, was similar to the theoretical role of magistrates in Massachusetts. It could be expected that the re- sults would be mitigated only by the greater numbers of people in- volved in making decisions.
The Fundamental Orders have been regarded as the first written constitution which created a government based on popular consent. The Orders were certainly not, however, the first written constitu- tion and possibly should not be regarded as a constitution at all. Gov- ernment in Connecticut had been established by an earlier document rather than created by the Orders. The government was neither pop- ular, nor intended to be so, if the term is used in its modern sense. Nevertheless, the Orders should be held in high esteem, although not for the reasons generally given.
There were written constitutions in existence before the Orders
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THE BASIS OF GOVERNMENT
were approved in Connecticut. Such a constitution had been ratified in the British colony of Bermuda in 1620. Another had been worked out in London and had been inaugurated in Virginia in the House of Burgesses in 1619. This Virginia arrangement contrasts with the Orders
(Courtesy Conn. State Lib.) OLD SAYBROOK-TOMB OF LADY FENWICK, CYPRESS CEMETERY. SHE DIED IN 1648
in that it was provided for the colonists rather than being evolved by them, yet it did inaugurate an earlier constitutional government.29 Connecticut, itself, had the written basis of a rudimentary form of gov- ernment prior to the Orders in the March Commission of 1636, which in turn had been refined by the establishment of the General Court in 1637.30 The Fundamental Orders were not, then, the first written con- stitution, nor were they the first form of government established for Connecticut.
50
HISTORY OF CONNECTICUT
There is a question whether, in the ordinary Anglo-Saxon usage of the word, the Orders constituted what might, in fact, be termed a "constitution." A basic principle of Anglo-Saxon constitutions is that they are inviolable except as altered with the advice and consent of the people. The power to change the Fundamental Orders, however, rested with the General Court. Article 10 provided that only it "shall have the power to make the laws or repeal them." There was no phrase by which alterations in the Fundamental Orders themselves were excluded from this sphere of the Court's authority. In actual practice, the Orders were altered eight times in the two decades which ensued prior to Con- necticut's receiving a charter in 1662. On five of these eight occasions, the alteration was made without reference to the freemen. In the other three cases, the referral made was not required but was voluntary on the part of the Court.31 Submission was not to the people in any broadly inclusive sense, but to a restricted group of "freemen" who not only were designated by the Court, or by a magistrate which it charged with this selection, but who could be deprived of this status for "scandalous offense."32 This would seem to indicate that, within the Anglo-Saxon concept, the Orders were regarded at the time and should be regarded not as a constitution, but as a series of statutory laws, more analogous to municipal and guild ordinances than to subsequent state and federal constitutions.33
No attempt was made to establish a popular form of government. Precise terms indicated those to whom the affairs of the communities and colony would be entrusted. The failure of later generations to un- derstand clearly what was meant in Puritan society by the terms "free- men" and "admitted inhabitant" has led to misunderstanding concern- ing the suffrage rights granted by the Fundamental Orders. There was a marked difference made between those who could merely vote on town matters and those who could, also, vote on colonial affairs. The town franchise was far from including the whole of the population, and the colonial franchise was much more sharply circumscribed.
The "admitted inhabitants" were the householders in the towns, including all the adult males, married or unmarried, who had taken the oath of fidelity. This oath could only be taken by a Trinitarian since it included the phrase, "Soe helpe me God in Or Lord Jesus
51
THE BASIS OF GOVERNMENT
Christ," but did not require that one must be a member of a Puritan congregation. By 1656, those under twenty-one years of age had to meet the additional qualification of having held office or of possessing an estate of 30 pounds.34 Women, servants, and apprentices were ex- cluded, and those who were convicted of any scandalous offense lost their standing. Those who qualified by these standards as "admitted inhabitants" could participate in local affairs, vote for local officials, and vote for the deputies to the General Court.35
An "admitted inhabitant," however, was not necessarily a "free- man." A "freeman" was any "admitted inhabitant" who was selected by the General Court or by a magistrate charged with this selection. Freemen, then, were selected by other freemen. They were those whom the General Court considered qualified to participate in the affairs of the colony: "they were the especially chosen of godly men, the last sifting in the winnowing of the grain."36 Connecticut differed from the Massachusetts and the New Haven colonies in that the religious base for participation in government was not ostensibly limited to church membership but only to the religious requirements implied in the oath of fidelity (i.e., Trinitarian conviction).37 However, Connecticut granted, in discussion with New Haven in 1663, that freemen should be of a visible religious carriage and that this should be attested to by the Dea- cons of the Church if there were such, or otherwise by approved per- sons, and by two town selectmen.38 In practice, then, it was assured that electors would be relatively safe, probably receptive enough to give consequence to the Connecticut law requiring parsons to instruct the Congregations in regard to elections. Probably less than one third of the "admitted inhabitants" were among this "popular aristocracy, the trusted pillars of the commonwealth."39 Members of this select group were eligible for any office in the colony; could participate in the elec- tions of colonial officials; and, in certain circumstances, could call the General Court into session. A government based on such limited suf- frage was hardly "popular," nor was it intended by the Puritans that it should be.
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