USA > Connecticut > Tercentenary pamphlet series, v. 1 Connecticut and the British Government > Part 3
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One group of laws he interprets as distinct infringe- ments on personal liberty, and he approves of none of them. What right, he says, has a state to make it penal for any one to play games or to drink liquor in private houses, to indulge in innocent and harmless recreation on Sunday, or to leave one's house on that day except for the purpose of going to church? What possible harm can there be in young people's meeting together in company on a Sunday evening, or on the evening of a lecture day or public fast day? Why forbid them to meet in taverns or forbid anyone to drink strong drink there, when such practices may be entirely innocent and devoid of all criminal intent?
Among all the Connecticut laws three in particular are conspicuous as having been the subject of grave com- plaint on the part of one or more of the disaffected inhab- itants of the colony, and it is interesting to note Fane's attitude toward them. These laws are the Act for the Suppressing of Heretics, the Act relating to Ecclesiastical Affairs, and the Act for the Settlement of Intestate Estates. Apparently Fane does not know that two of these laws, the first and the last, had been disallowed by orders in Council, one in 1705 and the other in 1728, else he would have made some mention of this important fact. He recommends that the Act against Heretics be annulled, not because it is "contrary to the liberty of conscience, indulged to Dissenters by the Law of Eng- land," which was the reason assigned by the Privy Council in 1705, but because it is extremely severe and liable to work hardship on account of the vague phrase- ology in which it is couched. The Ecclesiastical Act, which had been bitterly denounced by Quakers and Anglicans alike, because it allowed no ministry to be established in the colony "distinct and separate from and
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in opposition to that which is openly and publicly ob- served and dispensed by the approved ministers of the place," he thinks on the whole a reasonable measure, though he makes the general remark that all the acts of the colony relating to ecclesiastical affairs need careful consideration. He objects to the Intestacy Act because it is contrary to the law of England, but he neutralizes somewhat the force of his objection by offering as a sub- stitute either a law modelled after that of England or one based on "such other method as may best fit the colony."
In 1706, two Quakers, John Field and Joseph Wyeth, made formal complaint to the Board of Trade against eleven acts of the colony. These acts concerned arrest, children to be educated, courts, delinquents, divorce, ecclesiastical affairs, freemen, houses and lands, inhabit- ants, single persons, and the settlement and support of ministers. To four of these acts, those concerning arrests, children to be educated, courts, and inhabitants, Fane returns no objection, though he characterizes that por- tion of the Courts Act imposing secrecy, which was em- bodied later in a separate act, as "of no manner of service." He objects to the Delinquency Act, but not to the section disliked by the Quakers, and also to the Di- vorce Act, chiefly on the ground that it was contrary to the law of England, though he considers some law about divorce very desirable and necessary. He objects, as did the Quakers, and apparently for the same reason, to that part of the Freeman Act which permits disfranchisement for scandalous conduct on the ground that the power conferred is arbitrary and the offense undefined. He says that the act requiring an inhabitant who wished to sell his house and lands to tender them first to the town before offering them elsewhere an extraordinary one, improper for England though possibly necessary in a
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country encompassed by enemies. He agrees with the Quakers, though of course unintentionally as he could have known nothing of their complaint, that to prohibit single persons from keeping house, except with the con- sent of the selectmen of the town where they live, is an unreasonable encroachment upon individual liberty. On the other hand, he has no objection to the law for the support of the ministry, which aroused such lively op- position from Quakers and Anglicans alike, and was resisted by both because it assessed all persons in the community for the maintenance of the Congregational church.
Fane criticizes a number of laws, not because contrary to the law of England but because they lacked some of the requirements or limitations of the English law in like cases. He objects to the Act for the Recovery of Debts because it contains none of the savings of the English statute; to that against forgery, because it is not suffi- ciently penal; to that relieving idiots, because it does not provide a certain method for ascertaining who should be deemed idiots; to that regarding transients, because it includes within its provisions others than vagrants and sturdy beggars; to that appointing commissioners for the draining of lands, because it omits some important conditions "which the law of England had made in like cases"; to that dealing with tavern haunters, because it involves a general presentment which was contrary to English law; to that limiting trials in civil causes, because it goes counter to certain practices in English courts; to that concerning manslaughter, because it includes a penalty unknown to English law; and to that suppressing unlicensed houses, because it introduces methods of con- viction hitherto unknown. He objects to the poor law of the colony and to the law for the punishment of perjury
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because they omit certain essential safeguards deemed necessary in England. In two instances he condemns a colonial practice even though it is in accord with that of England, as when criminals are deprived of counsel, ex- cept as to matters of law, a rule which he deems neither laudable nor justifiable under any circumstances, and when robbery and burglary are punished with death, as was the case in both England and Connecticut. He com- mends the law of the colony providing for the payment of members of the assembly, as consonant with ancient usage though long since abandoned by the British par- liament.
Whenever he can do so, Fane favors the colony and approves of a number of laws which, strictly construed, were contrary to the law and practice of the mother country. He sees ample reason why the Connecticut law of treason should differ in some important respects from that of England; he approves of the colony's forms of writs and processes, though he thinks that better ones might be drawn; he deems the act regarding summonses better than the corresponding English law; he accepts all the colony's military arrangements as probably neces- sary in a new country though manifestly improper in England; and he is content to believe in a number of instances that the colony is the best judge of its own needs and most competent to determine what is essential for the happiness and welfare of its people. In comment- ing on the act levying executions, he notes that the measure is not agreeable to the law of England and that parts of it are not as good as the corresponding English practice, but he agrees that as a whole the law is neither improper nor unreasonable and he recommends that it be confirmed.
In a large number of cases, Fane approves of a law
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because it relates to the private or domestic concerns of the colony and so, he thinks, lies beyond the legitimate sphere of royal control. In this class are all laws relating to home lots, fences, highways, common fields, rates and taxes, excise and imposts, nominations and elections, schools, militia, police, and internal trade. He raises no objection to the act for ascertaining the value of coins current within the colony, even though he should have known that the Board of Trade was accustomed to recom- mend all such acts for disallowance, because they inter- fered with the royal proclamation of 1704 and the Coin- age Act of 1708, defining the rates at which gold and silver coins should pass in the colonies. Even more inter- esting is his attitude toward acts for the issue of bills of credit. At first, he classes all such acts, eleven in number, passed before 1738, in the group of those relating to the domestic concerns of the colony, but later he takes a dif- ferent view of the matter. This change of opinion is due, of course, to the fact that in 1739 the question of colo- nial paper currency was brought up for consideration in parliament, and from that time till 1751, when the statute was passed forbidding the issue of paper money in New England, it became the subject of heated discus- sion. As Fane was intimately connected with the debate in its earlier and later stages, having had in charge, as we have seen, the measure of 1739-1740 and that of 1749, it is easy to understand why in his later comments he should recommend the disallowance of all such acts, on the ground that "the multiplying paper credit beyond what is necessary is liable to many inconveniences."
All things considered, Fane's comments are eminently fair and reasonable and have in many cases a very modern ring. They exhibit no bias in favor of one policy or anoth- er. Even when remarking on the Act for better Regulat-
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ing Proceedings and Pleas at the Bar, in which regard for his own profession might well have led him to judge severely the looseness of the colonial standards, he merely says that there ought to be further qualifications re- quired for those admitted to practice as attorneys, "some ability and knowledge of their profession being in my opinion absolutely necessary for the due exercise of their employment." If criticism of his opinions is justified, it would apply rather to the leniency than the harshness of his comment. Perhaps, had a greater issue been at stake, his remarks would have been more trenchant.
It must be remembered that Fane is reporting only on points of law. In but one instance does he appear to base his objection on rules of general policy or expediency, such as would have governed the recommendations of the Board of Trade. In commenting on the Act concern- ing the Importation of Rum, he opposes the act on purely commercial grounds, and in so doing discloses his sym- pathy with the British West India colonies, whose threatened loss of the sugar trade had been before par- liament for a decade and had resulted in the two acts of 1733 and 1739. In no other case does he object to a law on other than strictly legal grounds, and consequently his reports contain no such definition of British policy as will be found in the representations of the Board of Trade or in the orders of the Privy Council. He is mainly concerned with laws that seem out of accord with Eng- lish practice or likely to lead to inconvenience or injus- tice. He is always on the watch for regulations that seem arbitrary or oppressive or are encroachments on individu- al liberty. For that reason he condemns the Act against Oppression as likely to stifle business competition and so to bring about the very thing that it seeks to prevent.
As compared with his other opinions and those of his
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predecessor and successors in the office of standing coun- sel to the board, Fane's comments on the laws of Con- necticut are lacking in force and incisiveness. Many of the laws he passes over with seeming indifference. His attitude may have been simply that of a busy man towards an obligation that was neither important nor pressing. I doubt if he actually wrote out the reports himself. Were the volume that he used before us, we might be able to draw some conclusions from its pages. Probably we are safe in assuming that he contented him- self with markings, underscorings, and marginal notes, and left the rest to a secretary. The opinions he presented were never known to the colony and probably were never seen by any one else than those immediately concerned. Nevertheless they are valuable and deserving of publi- cation, not only for their interest as a commentary on the early laws of Connecticut, but also as a contribution to the larger question of the British attitude toward forms of colonial legislation that were already showing important points of divergence from the corresponding law and practice in England.
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Printed at the Printing-Office of the Yale University Press
74.6 5054 no.2
Connecticut, History ..
TERCENTENARY COMMISSION OF THE STATE OF CONNECTICUT
QUI
SUSTINET
TRANSTULIT
COMMITTEE ON HISTORICAL PUBLICATIONS
The Connecticut Intestacy Law
PUBLISHED FOR THE TERCENTENARY COMMISSION BY THE YALE UNIVERSITY PRESS' 1933
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TERCENTENARY COMMISSION OF THE STATE OF CONNECTICUT
COMMITTEE ON HISTORICAL PUBLICATIONS
The Connecticut Intestacy Law
CHARLES M. ANDREWS
T HE colonial era of our history has generally been treated with an insufficient appreciation of its economic forces, and, in consequence, there has been a tendency to minimize the importance of certain periods of that history which show little political activity and are to the world at large dull and uninteresting. Such a period is the first forty years of the eighteenth century, and in the following paper I hope to show why I think that, from the point of view of the English policy toward the colonies and their economic development, this period will in the future stand much higher in the estimate of historians than it does now. The discussion that follows involves a number of points of law, and carries us through a controversy which, al- though of immediate importance to Connecticut only, was of exceeding interest to all New England, and indi- rectly touches the general subject of colonial history.
The starting point of the controversy and its underly-
This article was printed originally in the old series of the Yale Review, III, 261-292, (November, 1894), and reprinted with some changes in Select Essays in Anglo-American Legal History, I, 431-463. For the purpose of this series of pamphlets it has been somewhat further revised and is here printed with- out the footnotes which originally accompanied it.
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ing cause was the agrarian system of New England. It is well known to students of the subject that the methods employed in the division of lands by the proprietors of the various towns involved certain principles based on the necessities of a new country. We may believe, if we wish, that these methods were the expression of deep- seated racial traits, but it is more rational to take into account two influences only; first, the agrarian environ- ment in which the settlers had been reared; and, secondly, the conditions and necessities that govern the settlement of a new and uninhabited country. These two considera- tions will concern us here.
Those who settled the New England colonies were- save in a very few cases-men of the burgher and free- holder class, to whom the detail of the English agricul- tural life was familiar. They had been inhabitants of towns and villages located on feudal estates and subject to a superior, the king or the lesser lay or ecclesiastical lord; they had in a large number of cases been reared in the midst of the English agricultural system, of which the village community with its long streets, its homesteads, its open fields divided into shots or furlongs and sub- divided into what were originally acre and half acre strips, its meadows, pastures, common and waste, was the local unit and that part of the system with which they were in daily contact. To this system that of New England bears a striking resemblance. One cannot com- pare the old manor maps of the seventeenth and eight- eenth centuries with any plan based upon the land records of a New England town without feeling that the similarities are more than coincidences. There is the same village street, the same homestead plots, the same great fields, the same shots and furlongs, and the same subdivision into smaller strips; there are the enclosed
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meadows held by a few, the pasture and waste common to all, and there are numbers of trifling manners and customs which show the English origin. It was the local, non-feudal land system which was transplanted with im- portant changes to New England, and formed the basis of the law of real property.
But there were other reasons why the local agrarian system of England was in its outward form reproduced by the New England settlers. Had it not accommodated itself to their notions of equality and equity, and to the economic needs of a people settling in a new and unin- habited country, it might have been altered and changed beyond recognition. But the local land-system of England was pre-feudal in its origin, and probably grew out of a primitive system of agrarian equality, a fact which the equal strips, the scattered holdings and the common rights serve to attest. The New England settlers were entering an environment similar to that out of which the English village came, and they therefore found it neces- sary to change the English local system but little in order to apply the methods of allotment demanded by a new country. The colonists took no retrograde step; all changes from the existing system at home were in keeping with the higher ideas of property and equality which the New Englanders brought with them. The principles which governed their action were three: first, that of preventing the engrossing of lands and their accumulation in the hands of a few, the dangers of which in England were familiar to the colonists; secondly, that of subserving the law of equity by treating every man fairly, not only in giving him a share in conquered or purchased lands, but also in so allotting that share that he might be subject to all the advantages and drawbacks that bore upon his neighbors; and thirdly, that of hastening settlement and
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the improvement of land. Land was therefore divided by the towns or by the bodies of proprietors into fields, called 'squadrons' in Worcester, 'furlongs' in Middle- town, 'shots' in Milford, and 'quarters' in New Haven, and these were subdivided into smaller strips ranging from one acre to forty or more in size. Various methods were employed for obtaining equality, and every effort was made to hasten cultivation and to increase industry. Removal was discouraged by liability to forfeiture; alien- ation was limited by laws common to nearly every town in New England; the burden of taxation and the care of the fences, highways, etc., was distributed as evenly as possible; and every effort was made to increase the amount of land brought under cultivation. All this was characteristic of New England in general and of Con- necticut in particular. The life in the latter colony was predominantly agricultural, the industrial and commer- cial aspects had hardly begun to appear, the government was popular-and for a hundred and fifty years of all the colonial governments it was the one most independent of the mother country-the laws made were adapted to the conveniences of the inhabitants rather than to the com- mon and statute law of England, and the policy of the colony at all times was to remain hidden as far as possible from the notice of the home authorities. It is no wonder, therefore, that there should have grown up under the conditions-agrarian and economic-attendant on the settlement of a new, partly uninhabited, partly uncon- quered territory, laws based not on legal theory but on custom, laws that either were not known to English law or were not in accord with it.
Of all these laws none was more important, more an organic part of the life of the colony or fundamental to its welfare, than that which governed the disposal of intes-
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tate estates. It is manifest that people influenced by the principles already mentioned in their distribution of land would apply the same principles to the distribution of the realty of an intestate. They certainly would not have undermined the colonial structure by admitting into its construction methods foreign to the general plan. Primo- geniture, favorable to the accumulation of estates, but unfavorable to a rapid increase of the inhabitants, a furtherance of agriculture, and a cultivation of the soil, and opposed to the natural law of equity, was not in accord with the principles of the New England settlers. The intestacy law was, therefore, the unavoidable and logical outcome of the principles which underlay the land-system of New England.
By the English common law the eldest son was the sole heir and was entitled to the whole estate exclusive of all other children, whereas the colonial law directed that the real estate of an intestate be distributed in single shares to all the children except the eldest son, to whom a double portion was to be assigned. The Connecticut practice had the sanction of both law and custom. As early as 1627 a visitor at Plymouth found that "in the inheritance they place all the children in one degree, only the eldest son has an acknowledgment for his seniority of birth." A statute of 1636 confirmed this practice, while in Massa- chusetts, in 1640, the court of assistants distributed the real estate of an intestate to his six sons, reserving a double portion for the eldest son. Thus what is known as partible succession became early rooted in New England.
Connecticut followed the lead of the older colonies. On October 10, 1639, the general court ordered that when a person died intestate an inventory of his goods should be taken and "the publique court" should "divide the estate to wiefe (yf any be) children or kindred, as in
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equity they shall see meet." This rule was inserted ver- batim in the Code of 1650 and in the Revision of 1673. Until the end of the century this was Connecticut's law of descent in intestacy cases. It was enforced by the Particular Court and later by the probate courts. The latter distributed each estate according to its needs, with a growing tendency to an approximately equal division among the surviving wife and children, the eldest son usually receiving the larger share.
On October 12, 1699, the general assembly enacted a formal law, which was rather an affirmation of custom than anything new in the way of legislation. Previ- ous practice, though based on rules laid down in the law books and tending toward uniformity had been conducted, as Governor Law said afterward, according to the principles of righteousness and equity lodged in the breast of the county court. The law of 1699 provided that probate courts should distribute an intestate's prop- erty as follows: one third of the personal estate to the wife forever (in addition to her dower right), the rest in equal shares among the children (or their representa- tives, if dead), except the eldest son, who was to get two shares or a double portion. This was merely the putting into statute form the practice of all the New England colonies, constituting a kind of compromise between the custom of gavelkind in Kent, which provided for an equal division among all the children, and the rule of the Mosaic Code (Deuteronomy, xxi, 17), which gave to the eldest son a double portion. It had grown out of the consent of heirs to an intestacy and had been found to be best adapted to the needs of the colonies. Governor Talcott gives in brief the reasons for the intestate law in his instructions to Belcher:
And much of our lands remain unsubdued, and must con-
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tinue so without the assistance of the younger sons, which in reason can't be expected if they have no part of the inheritance; for in this poor country, if the landlord lives, the tenant starves: few estates here will let for little more than for main- taining fences and paying taxes. By this custom of dividing inheritances, all were supply'd with land to work upon, the land as well occupy'd as the number of hands would admit of, the people universally imploy'd in husbandry; thereby con- siderable quantities of provisions are rais'd, and from our stores the trading part of the Massachusetts and Rhode Island are supply'd, the fishermen are subsisted, and the most of the sugars in the West Indies are put up in casks made of our staves. By means of this custom his Maj'ties subjects are here increased, the younger brethren do not depart from us, but others are rather encouraged to settle among us, and it's mani- fest that New England does populate faster than the Colonies where the land descends according to the rules of the common law. And such measures as will furnish with the best infantry does most prepare for the defence of a people settled in their enemies country. If this custom be, so ancient and so useful, non est abolenda, sed privare debet communem legem.
Such were the conditions out of which the intestate law grew, and such were the reasons for its embodiment, after sixty years of experience, in statutory form. But whatever the value to the colony of a law of this kind, the fact remains that it was clearly contrary to the cor- responding law of England and in violation of that clause of the charter which said that the laws of the colony should not be contrary "to the laws of this Realm of England." There was no qualifying phrase "as near as may be" in the Connecticut charter, as there was in that of Rhode Island, so that the colony could not plead, as could the Rhode Islanders, that their law was "agreeable to the lawes of this our realme, considering the nature and constitution of the place and people there." There- fore, Connecticut was helpless when certain disaffected
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