USA > Connecticut > Tercentenary pamphlet series, v. 1 Connecticut and the British Government > Part 2
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Fane's leisurely attitude towards the task set him by the board and the latter's failure to act upon the lawyer's
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reports can probably be explained by the events of the decade following the receipt of the laws. The crown law- yers had made it perfectly clear that the legislation of Connecticut and Rhode Island could be brought under royal control only by a special act of parliament, and it was manifestly to the interest of those concerned in England that such an act should be passed. The period was one of growing parliamentary supremacy, during which colonial questions were frequently under discussion and important measures relating to the colonies were placed upon the statute book. The Hat Act, the Act for the Recovery of Debts in the Plantations, the Molasses Act, and the various measures concerning rice, masts, and naval stores, aroused active discussion, both in par- liament, in the form of debate and deposition, and out of parliament, in the form of a great mass of pamphlet liter- ature which presented in lively fashion and with consider- able acrimony the relative importance of the Northern Colonies and the West India islands in the British commer- cial scheme. The Board of Trade, which Partridge declared was no "Friend to the Northern Colonies," because it upheld the royal prerogative, the interests of British subjects, and the doctrines of the mercantilists, who rated the Sugar Colonies of greater importance to Great Britain than the Northern or Bread Colonies, sent in during these years three important representa- tions to parliament, in which it presented the colonial situation in very elaborate and detailed form. In the last of these representations special stress was laid upon the failure of even the royal colonies to send over their laws promptly, and the statement was made that Connecticut and Rhode Island "not being under any obligation by their respective Constitutions, to return authentic copies of their Laws to the Crown for Approbation or Disallow-
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ance, the board was very little informed of what is done in any of their Governments." The matter was taken up in the House of Lords, and Wilks reported to Talcott that he heard a member say "the Constitution of some of our Plantations was inconsistent with the Interests of England and ought to be new Model'd." Influenced by the representation of the board, the House appointed a committee to consider the matter, and among the resolu- tions reported were two which read as follows:
That it is the Opinion of this Committee that each Colony, whether under the Crown or otherwise, be obliged to send over a Complete Collection of all the Laws understood to be in force there, to the Board of Trade; and that the Crown be empowered to repeal any Law, passed under any of the said Governments at any time whatsoever, which hath not actu- ally received the Royal Approbation in Council, if such Law be found detrimental to the Prerogative, or to the Trade or Navigation, or Interest of Great Britain; any Privilege or Limitation by Charter or otherwise, for the Time or Manner of repealing such Laws notwithstanding.
That all the Laws made in the Plantations as well under Proprietary or Charter Government, as in those where the Government is immediately vested in the Crown be, for the future, transmitted Home, for His Majesty's Consideration, within the Space of Twelve Months from and immediately after the passing of such Laws respectively; and therefore that no Law passed in any of the British Colonies be for the Future in Force or be allowed to have any effect until the same shall have received His Majesty's Approbation in Council, any Usage, Custom, Charter, Privilege, or Law, to the contrary, notwithstanding.
These resolutions and the others were agreed to by the House and the judges were ordered to bring in the heads of a bill at the beginning of the next session. Fortunately for the colonies, which were considerably agitated at the reports of their agents regarding this threatened attack
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upon their liberties, the matter was eventually dropped and never came up again.
The refusal of parliament to act on the resolutions left Connecticut firmly entrenched behind her charter and reestablished in her full right to pass any laws that she pleased, provided they were not contrary to the law of England. This conclusion must have lessened materially Fane's interest in a further examination of Connecticut's laws, and when in 174I parliament was dissolved, he probably considered it unnecessary to go on with his task, which from this time forward could have had but an academic importance. These facts explain adequately the date of Fane's last report, June 16, 1741.
II
AFTER 1731, the colony sent its laws to England on four separate occasions. The first occasion arose as follows. In 1739, the question of paper currency and the rates of gold and silver in America came up for consideration in the House of Commons. Fane was a member of the House and, as it happened, was the chairman of the committee of the whole House when this question reached the committee stage of debate. Among the resolutions from the committee that Fane as chairman reported to the House, was one moving an address to the King, de- siring him "to require and command" the governors of the colonies to send over copies of their laws. The King, in response to this address, "commanded" the Board of Trade "to prepare a complete collection of the laws in the British colonies in America." The board, acting on this command, wrote, May 21, 1740, to Connecticut asking for a copy of the laws of the colony, and this, too, before Fane himself had completed his report on the laws in his own possession. It is quite possible that Secre-
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tary Hill's letter to Fane, mentioned in the opening lines of the ninth report, was prompted by this command. On November 12, 1740, a week after the letter was received, Gov. Talcott promised to bring the matter to the atten- tion of the council and assembly of the colony. Two weeks later he wrote, in the name of the Governor and Company, "We have ordered a Collection of the Laws of this Government to be prepared and transmitted to your Lordships by which you will see the laws that have been made and are in force in this Government." This letter and the book of laws, consisting of the reprint of 1715, with all sessional acts to 1740 bound in and paged con- secutively, were received by the board July 14, 1741. This volume, bound in calf and containing 486 pages, is now in the Public Record Office. No use was ever made of it by the board and no report upon the laws since 172I is to be found among the papers of the office. Probably it was not even sent to the legal adviser, who had only just returned, June 16, his opinion on the laws received nine years before. As Fane kept the volume previously sent him and as we do not find any trace of the duplicate sent by Rip Van Dam, the board now had for the first time since 1698, a complete and up to date collection of the laws of Connecticut in its possession.
The next occasion for sending the laws of the colony to England arose in 1751. In that year the Board of Trade, which had been given a new lease of life under Halifax in 1748, made a representation to the Council Committee, recommending "the framing a new body of good and well digested laws in all the colonies." The committee took up the suggestion, and in its report to the Council said, "And whereas some of the Proprietary and Charter Governments in America tho' empowered to make Laws are not required to transmit such Laws
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to His Majesty for his Approbation or Disallowance Yet in regard Appeals are frequently brought before His Majesty in Council from the Judgments and Decrees made in the several Courts of Judicature within the said Governments the Determination whereof depends on being duly informed of the Laws subsisting there, It is therefore thought Expedient that those respective Gov- ernments should transmit hither as soon as conveniently may be a true and Authentick Copy of all the Laws now in force." The Privy Council accepted this report and ordered the board to proceed accordingly. On April 16, 1752, the latter wrote to the colony instructing the Gov- ernor and Company to send over its laws. Gov. Wolcott said in reply, December 20, 1752, "I herewith transmit to you a Book of our Laws according to their orders" [that is, of the Lords Justices, acting in the King's absence]. This volume, now in the Public Record Office, is the book of Acts and Laws, printed at New London by Timothy Green in 1750, with sessional acts to and in- cluding those of May, 1752. At the end, bearing a fine specimen of the colony's seal, is a certificate by Gov. Wolcott and Sec. Wyllys, stating that these were "the laws in force and published 20 Dec. 1752," the date of the despatch of the letter.
The next laws of the colony that were sent to England were transmitted by Gov. Fitch, June 29, 1756, without special orders, as far as we know, from the Board of Trade. In his letter of that date, Fitch wrote the board as follows: "I have also herewith sent printed copies of the Laws passed in the Colony since the Book containing the Statute Laws of the government which about five or six years ago was transmitted to your Lordships to which I begg leave to refer for the knowledge of the laws at that time; by that Book and the Additional Acts now
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sent yr Lordships will see what are the Laws now in force in this Government." This letter was read at the meeting of the board on August 8, and the acts were ordered to be sent to the legal adviser, Sir Matthew Lamb, "for his opinion thereon in point of Law." The sessional acts thus transmitted were forty-five in number, passed between October, 1750, and January, 1756. Lamb must have re- tained the acts thus sent him, for they are not to be found among the papers of the board, and no report on them has come to light although Lamb continued to be the board's legal adviser until 1768. The last laws despatched by the colony, regarding which we have any knowledge, were sent by Gov. Trumbull in July, 1770, to Hills- borough, who had been appointed in 1768 secretary of state for the colonies. They consisted of printed copies of the laws passed in 1768, 1769, and 1770, in the form of sessional sheets, continuously paged. These laws, of which no use was made, as far as I know, are among the papers that accumulated in the hands of the secretary of state, now included in the Colonial Office series.
From this brief survey of Connecticut's relations with the home government, certain conclusions may be drawn. The colony was, as a rule, willing to meet all reasonable demands of the authorities in England that did not in- fringe upon what it considered its charter rights. These rights it interpreted in the broadest possible terms, claiming powers that, however desirable and necessary for Connecticut's well-being as a self-governing commu- nity, were not legally in accord with the original purpose of a trading charter or agreeable to the leading principles of British policy. That the colony was able to maintain its position in the face of the many attempts made to alter its status, was due partly to the ineffectiveness of the British system of colonial management, and partly to
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the political and constitutional situation existing in the years from 1700 to 1750. Among the various individuals and bodies in England, vested with functions to perform and authority to exercise, there was so much ignorance, indifference, and carelessness that cooperation was al- ways difficult and frequently impossible. The colonial machinery was old, badly constructed, and worked with no certainty as to the result. More important still is the fact that the period was one of constitutional change, when the power of the King, his Council and appointees, was declining and the authority of parliament was more and more filling the scene. In the conflict between Tories and Whigs, the royal prerogative and parliamentary control, and the principles that each represented, we find ample reason for the failure of the plans against the chartered colonies. The refusal of parliament to support the policy of the Board of Trade and to strengthen the prerogative of the crown, or to take effective measures itself to hold the colonies to their legal obedience, was the best security that the latter could have possessed against attempts to reduce them to the status of depend- encies, the interests of which were subordinate to those of the mother country.
III
BEFORE 1718, the Board of Trade customarily sent all colonial laws that came into its hands to the crown law- yers, the attorney-general and solicitor-general, for their opinion on points of law; but after that date it had a special legal adviser of its own. The first to hold this office was Richard West. He was followed in 1725 by Francis Fane, and he in 1746 by Matthew Lamb, afterward Sir Matthew. Lamb died in 1768, while holding the office, and there was an interregnum of a year and a half before
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the appointment of the next incumbent, Richard Jackson, who remained the adviser of the board until its dissolu- tion in 1782. Each adviser was required to be in attend- ance on the board at least twice a week and to make regular reports on the laws and legal questions submitted to him. For these services he was paid at first three and then six guineas for every attendance, and £300 a year for his reports on colonial laws.
Francis Fane, of the Middle Temple, armiger, and resident of St. James's, Westminster, was born about 1698, the eldest son of Henry Fane of the city of Bristol and grandson of Sir Francis Fane of Fulbeck, Lincoln- shire, the poet and dramatist. His grandmother was Hannah Rushworth, daughter of John Rushworth, the well known clerk-assistant to the House of Commons during the Civil War, secretary, historian, and editor of the Historical Collections. His father lived at Westbury- on-Trym, where he died in 1726. His mother was Ann Scrope, daughter of a Bristol merchant and sister and co-heir of John Scrope of Wormsley in Oxfordshire, member of parliament from Lyme Regis in Dorset, from 1734 to 1752, the year of his death.
Fane became a barrister-at-law and was attorney- general to the Prince of Wales and Queen Caroline, son and wife of George II. He was appointed a King's Counsellor in 1727, in the rising tide of his prosperity, and in the same year was returned a member of parlia- ment for the borough of Taunton, Somersetshire, serving through the two parliaments of 1727 and 1734 until 1741. In 1747 he was returned for Ilchester in the same county, and in 1754, two years after the death of his uncle, John Scrope, for Lyme Regis in Dorset. Thus his parliamen- tary career lasted twenty-six years and was continuous, except for the period from 1741 to 1747. That it was
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an active career a study of the journal of the House shows. On his uncle's death, he succeeded to the Wormsley estates, but through the greater part of his career he must have resided in the city of Westminster, now a part of London. He was the most prosperous of his father's sons, was possessed of ample means, and was able to aid his brothers in obtaining official and par- liamentary preferment. The first brother, Thomas, was an attorney in Bristol, and clerk to the Society of Mer- chant Venturers there; the second, Henry, was a clerk to the Treasury Board, and later one of the clerks of the Privy Council. A sister, Mary, who died in 1773, married Samuel Creswicke, D.D., dean of Wells Cathedral.
Fane died May 27, 1757, and bequeathed his manors and lands to his brothers, the estates in Somersetshire and Gloucestershire to Thomas, and those in Bucking- hamshire and Oxfordshire, including Wormsley, to Henry. He never married, but had a natural child by one of his servants, Ann Hopkins, who was the daughter of another servant, a widow, Ann Hopkins of Brympton, where he purchased an estate in 1730. To this son, Henry Hopkins, who took the name of Fane after his father's death, he left a legacy of £25,000.
Had Fane survived his distant relative, John, the last son of the elder line, who died childless in 1762, he would have become lord of Apethorpe and Sharlston and eighth Earl of Westmorland. As it was the title went to his brother Thomas. The earldom had come into the Fane family when Lady Mary Nevill-daughter and heir of Henry, fourth Lord Abergavenny and descendant in the junior line of Ralph Nevill, first Earl of Westmorland- who had married Sir Thomas Fane as his second wife in 1574, obtained from James I the revival of the title, which had lapsed through an attainder. Under the new
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creation, her son, Francis, became first Earl of Westmor- land, by patent issued December 29, 1623. This event not only assured the rapid advancement of the Fanes in wealth and social distinction, but it also brought under their control the parliamentary borough of Lyme Regis, which remained at the disposal of the Westmorland family until after the passage of the first Reform Bill, that is, until December, 1832. During the greater part of Francis Fane's life, Lyme Regis was a close borough con- trolled in the interest of the Duke of Newcastle. For nearly a century, with but few exceptions, it was repre- sented in parliament by members of the Scrope or Fane families, and after the death of John Scrope in 1752, by Fanes only, brothers, father and son, or uncle and nephew, among whom were Francis, Thomas, and Henry.
Francis Fane was commissioned legal adviser to the Board of Trade, by patent under the great seal, August 9, 1725. He was to attend at least twice a week and to hold the office during good behaviour. He undoubtedly owed his appointment to his distant cousin, Thomas, sixth Earl of Westmorland, who was president of the Board of Trade from 1715 to 1735, when he became lord lieutenant of Northamptonshire. Francis remained legal adviser of the board until 1746, in which year he was commissioned a member, an office which he retained until he retired in 1756. He was an eminent lawyer, pos- sessed of ample legal knowledge, and his opinions are characterized by good sense and fairness. He played an influential part in our colonial history, as his comments on the laws of the colonies, extending through a period of twenty-one important years, formed the basis of nearly all the reports of the Board of Trade to the Council Com- mittee, and so became determining factors in all confir- mations and disallowances of colonial laws. After he
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became a member of the board itself, he was able to continue his work the more effectively because of the experience and knowledge that he had gained in his study of colonial legislation. Thus for more than thirty years he was in touch with one aspect or another of colonial affairs, and probably knew as well as any other man of his time, unless it were the secretary of the board, the situation in America. His place as a member of the board must have been congenial to him, and he in turn must have been an efficient ally of the Earl of Halifax, after the latter became president of the board in 1748. Fane was an intimate friend of the earl's and often spent Christmas with him at his family seat of Horton.
IV
FANE's nine reports cover three hundred and eighty- seven acts and three resolutions, and his comments upon them may be classified as follows: One of the acts had been repealed by the colony and so called for no opinion, but of the remainder seventy-five were open to objections and deserved to be disallowed by the crown. The other three hundred and eleven were good, proper, well con- trived for the purpose intended, reasonable, containing nothing amiss, fit to be confirmed, open to no objection, or adapted to the conveniences of the colony. Of the seventy-five recommended for disallowance, twenty- eight were too severe or unreasonable, nine were too loose, inexact, or uncertain, seven were at variance with the law of England and for the purpose intended inferior to the corresponding English law, six gave too much power to the court of assistants, the county court, the justices of the peace, and the selectmen of the towns, five, though good in part or excellent laws in general, needed enlargement or modification, three omitted cer-
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tain necessary definitions or limitations of the English law relating to the same subject, three concerned the question of intestacy and had already been disallowed, and two were incomplete or insufficient as regards the penalty imposed. Of the resolutions, one was unobjec- tionable, one just and proper, though likely to be more effective if made a law, and one, though agreeable as a law, was probably illegal as a resolution.
When we examine more closely the comments con- tained in the reports we are struck with the number of acts that the English lawyer deems harsh and arbitrary and liable to abuse. In this respect, he upholds the charges of those who had made complaints to England against the colony. Fane thinks that the civil and judicial authorities in Connecticut were allowed far too much discretion for the safety and welfare of the people, and he condemns the language of the laws as giving too fre- quent opportunities for injustice and even oppression. The modern lawyer will hardly be surprised that Fane should have commented adversely on laws that allowed a court to reject a suit at will or that vested it with power to inflict a punishment at its own discretion. Parties to a suit, he says, have a right to be tried by rules of law, and a penalty, whether fine, imprisonment, flogging, disfranchisement, banishment, or committal to the house of correction, should be determinate and not at the court's pleasure. The language of the law he deems often so vague and unprecise as to render doubtful the nature of the charge and so to destroy the usefulness of the measure; and he demands a much more exact defini- tion of such offenses as lying, defamation, lascivious practice and carriage, reviling, profane speaking, mis- behavior, pretended damage, heresy and the like, before he can feel satisfied that the punishment is in accord
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with the crime committed. In the very vagueness of the description he sees opportunities for unfairness and in- justice. For instance, he considers that "walking scan- dalously" or "committing a scandalous offense" is an insufficient reason for disfranchisement, and says that many of the charges in the Act against Breaking the Peace are trivial when compared with the authority vested in the magistrate or justice of the peace to punish them. He makes much the same comment on the laws giving the justices power over rogues and vagabonds, and the selectmen power over the estates and credits of idle and poor persons. He calls unreasonable the law which forbids a servant man or maid to buy and sell, and that unjust which requires a stranger to find surety in the colony before bringing suit in a local court.
The fact that Fane should have called especial atten- tion to the severity of the penal code of Connecticut is characteristic of the changes coming over the spirit of the English common law at this period. The penalties imposed in the colony for lying, wearing woman's appar- el, delinquency, and heresy seem to him excessive, and in some cases, as in that of delinquency, appear to involve the innocent as well as the guilty. In but one instance, that of forgery, does he demand a heavier punishment, though in a few others he recommends the imposing of a heavier penalty for a repetition of the offense. In the case of laws that impose stigmatizing or branding as a part of the punishment, he speaks with no uncertain sound. England, he declares, has abolished all such forms of pun- ishment, except rarely that of branding in the hand, and their continuance can serve no good in any community. Branding on the forehead, wearing a halter, or displaying conspicuously a capital letter, as penalties for adultery, bigamy, unchastity, incest, and burglary, are more
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likely, he thinks, to render offenders incorrigible than to reform them, or to transform them into useful members of society. Perpetual infamy would always bar the road to good citizenship. In the case of laws concerning bigamy and unchastity, he sees that a person might be condemned on a mere suspicion. He objects even to the posting of the names of tavern haunters as a form of publicity likely to be harmful, and in commenting on the Act against Man- slaughter he condemns that part of the penalty which imposes a perpetual inability to give verdict or evidence as not only unknown to English law but as entirely un- suited to the crime.
Fane is not a little puzzled by the extraordinary character of the law imposing capital punishment ac- cording to the Mosaic code. Terrible as had been the English law in capital cases, it had never pretended to find warrant for the death penalty in the Scriptures, and Fane has to fall back on his own common sense in express- ing an opinion upon this pentateuchal measure. The clause against idolatry he throws out altogether as use- less; that against blasphemy he deems unnecessarily severe, since blasphemy was construed as only a minor offense in England; while that against witchcraft he in- terprets in the light of the Salem delusion and recom- mends its entire omission from the statute book. The clauses dealing with rape, man-stealing, and false witness seem to him deserving of very considerable alteration. In fact, throughout all his comments, the Puritans' somewhat formal adherence to the letter of Biblical law is a matter of much concern, and there is no doubt that the observance of the Sabbath as a factor shaping legis- lation sticks mightily in his throat. Why, he says, should a crime be punished more severely when committed on Sunday than on any other day in the week?
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