USA > Connecticut > Tercentenary pamphlet series, v. 1 Connecticut and the British Government > Part 4
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ones in the colony, who were opposed to the charter gov- ernment and wished to enter into closer relations with England, began to question very early the validity of the practice. The matter was not, however, destined to become a major issue for nearly thirty years, but it early became part of a larger problem, which greatly troubled the colony from 1701 to 1723, the forfeiture of the charter and the proposal to unite the private colonies to the crown. The agitation to produce this latter result was due to the desire to unite the colonies under a common political and military head for greater security against the French and for a more effective carrying out of the acts of trade.
It was not difficult to find charges against Connecticut and Rhode Island. Complaints were made that the colo- nies broke the navigation acts, harbored pirates, neg- lected to take the oaths required by law, encouraged manufactures, were negligent in military duties and in the erection of fortifications, encroached on the jurisdic- tion of the Admiralty, and opposed the authority of its officers, protected escaped soldiers, seamen and servants, and failed to comply with certain requirements of the home government-as in the case of the proclamation regarding coin, the instructions to naval officers, the command to aid New York with quotas of men against the French and Indians, etc. Through the influence of Dudley and the pertinacity of Edward Randolph, for it was he who personally led the campaign in the lobby of parliament, a bill was brought forward in 1701 for reuniting to the crown the governments of several colo- nies and plantations of America-Massachusetts Bay, New Hampshire, Rhode Island and Providence Planta- tions, Connecticut, East and West New Jersey, Pennsyl- vania, Maryland, the Carolinas, and the Bahamas-on
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the ground that "the severing of such power and authority from the Crown and placing the same in the hands of subjects hath by experience been found prejudicial and repugnant to the trade of this Kingdom and to the welfare of his Majesty's other plantations." The bill, however, by reason of "the shortness of time and the multiplicity of other business," failed to pass, but the board, thinking it very likely that it would come up again for consideration, desired from the colonies all possible information that would aid in the matter. From 1701 to 1706 charges con- tinued to be sent in. Quary, Bass, Congreve, Larkin, Dudley, and Cornbury all drafted lists of complaints. The board in a representation to the council in 1703 expressed its opinion "that the great mischief can only be remedied by reducing these colonies to an immediate dependence on the Crown." For Connecticut it was a time of anxiety. The influence of the Hallam case, of the controversy over the Narraganset country and the boundary line with New York, of the case of the Mohegan Indians, of the petition of the English Quakers against a Connecticut law, was to keep certain aspects of Connecticut's management steadily before the Board of Trade and to lead to what were often serious misrepresentations to the home authorities. In consequence Connecticut got a bad name. In 1704 the colony narrowly escaped having a governor put over it through the authority of the queen in council. But that body evidently preferred that parliament should take the matter in hand and in 1706 a bill similar to that of 170I was introduced. It passed the House of Commons but failed of passage in the House of Lords.
The long list of charges against the proprietary and charter governments already on the books of the board was continually supplemented by additional charges from Congreve, Dudley, Quary, Gauden and others.
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The failure of the bill of 1706 was a severe blow to its supporters, and the colony for several years experienced a relief from its anxiety. In 1715 the matter came up again because of the complaints regarding banks, naval stores, the trouble with Carolina, etc., and the House of Commons appointed a committee composed of members of the Board of Trade "to inspect into the miscarriage and to prepare a bill to resume the grants of the pro- prietary governments." Again a list of charges was pre- pared, but, whether another failure was feared or a juster policy decided upon, a different plan was tried for Con- necticut. The long drawn out controversy between Con- necticut and Rhode Island and the frequent appeals to England for aid in reaching a decision had led the Privy Council to request the Board of Trade to make inquiry and report. The board in its reply recommended, as the simplest solution of the difficulty the surrender of the charters and the uniting of both colonies to New Hamp- shire. The council approved the recommendation and bade the board inquire of the colonies, through their agents in London, whether they would be willing to sur- render their charters peaceably. Connecticut's answer is a masterpiece of firmness and politeness and, although in the name of the Governor and Company, was undoubted- ly written by Saltonstall. He commends the justice and honor of the ministry in thus referring the question to the corporation, a method wise and just, possessing not the least appearance of force and terror. He contrasts it with previous methods unreconcilable with common rights, law and custom, of which the colonies had had full experi- ence. This spirit of fairness he attributes to the existing king and ministry, who, though unlimited and subject to none, yet observed the limits of wisdom and justice, and were tender of what others should enjoy as well as of
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their own prerogative; who did not make use of their power to terrify the colony out of its rights and property, but gave it leave to speak for itself. After these quieting words, the Governor and Company regret that they can- not choose that resignation of their rights which the king and ministry think might be best for them, and con- clude this portion of the letter with the following instruc- tions to the agent: "You are therefore hereby directed in plainest terms to acquaint their Lordship that we can't think it our interest to resign our charter, But on the contrary, as we are assured, that we have never by any act of disobedience to the Crown made any forfeiture of the privileges we hold by it, So we shall endeavor to make it manifest and defend our right whenever it shall be called in question."
The limits of this paper will not allow a further dis- cussion of the attitude of the home government toward the colony. It is, however, fundamentally important that we should appreciate the relations which had previ- ously existed, and the one sided character of the informa- tion which the Board of Trade, the Privy Council and even parliament itself received. The mere titles of the papers containing charges against the proprietary and charter governments cover twenty-one pages of an entry book. Regarding Connecticut there is almost nothing to relieve the unfavorable impression received by the board, except a letter now and then from the governor, and the answers to the queries that were occasionally sent to the colony. The references to Connecticut in the Journal are rare, and generally relate to some complaints against her. It is difficult to determine how far the board believed the statements sent it, but its representations do not show any inclination to lighten the impression which the letters from the colonies give.
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This was the position that Connecticut occupied in the sight of the home authorities when John Winthrop, a grandson of one colonial governor and nephew of another, denying the validity of the intestacy law, claimed all the real estate of his father who had died in 1717, but lost his case in the colony court. One Timothy Prout of Maine, who visited Winthrop at New London at the time, wrote as follows about the matter.
Sometime after that I was at the house of Mr. John Win- throp at New London when he told me he had a contest in the law with his brother and sister Letchmore; that it was deter- mined in faver of his sister Letchmore, but said he was deter- mined to go to Great Britain for relief, upon which I told him I never had an own sister but if I had I should have look'd up- on her next to my wife and I should have been willing she should have enjoy'd part of my father's estate with me. He answered me his affairs were a Point of Law and was resolv'd to have it determined. Upon which I related to him what I above set forth [about a matter of appeal to England] and told him I would give it to him as his father's advice, that he would not go to Great Britain. Notwithstanding which he re- fused the advice and in about two months after took his passage for Great Britain, involved his estate and there spent his days in prosecuting that affair and never returned to his family again.
As the result of Winthrop's efforts the intestacy law was disallowed by an order in council, February 15, 1728, as contrary to the laws of England and not warranted by the charter. The case was a private one and the colony was not heard in the matter until afterward, when the agents tried to obtain a reversal of the order. There is no doubt that the defendant, Lechmere, was inadequately defended by someone little versed in the colony's affairs, that his evidence was far from complete, his purse far from full, and that he was especially in want of "a good
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sword formed of the royal oar." Winthrop, on the other hand, was ably defended by Attorney General Yorke and 1 Solicitor General Talbot. The committee of the council did not call in the assistance of the Board of Trade, and there are no documents bearing on this phase of the case among their papers. Winthrop did not rest his case solely upon the question of the validity or invalidity of the law, but he repeated most of the charges, which were already familiar to the council and its committee, and thereby, as Mr. Parris said, "very much assisted his case." The legal aspects of the trial have attracted but a small amount of attention from historians, for the incidents were neither dramatic nor politically exciting, yet there were involved in the case principles of great moment to the colonists, questions, the solution of which was to affect the future relations between them and the home government.
The effect of the vacating of the law shows at once that the Privy Council acted without a reasonable understand- ing of the matter at issue. It based its opinion upon the literal interpretation of the charter from its own point of view, and was entirely without a just appreciation of the equity in the case. Two conditions, defensible in themselves, had come into conflict. For the moment the customary law of one country, arising from one set of historical circumstances, was to be enforced in another country, the agrarian and economic life of which had brought into existence a customary law very different. The common law of England and the common law of the colony did not agree. The latter did not represent the defiant will of a body of lawmakers, it represented a prin- ciple of land-distribution which the experience of the colony had shown to be best adapted to its own prosperity and continued existence. This becomes clearer when we
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note what would have been the economic effects of voiding the intestate law.
The first result would have been a general unsettling of titles to lands left intestate or alienated after intestate settlement. This was due to the fact that a large majority of the people consisted of farmers and agriculturists, pos- sessing little personal estate. Many of these settlements reached back to the beginnings of the colony, and the invalidating of titles would have affected large numbers of descendents who would thus have been liable to ejec- tion at the instance of the eldest heir. Such ejectment concerned the younger sons and the female heirs, for whom under such conditions there would be no place in the colony. Even if the titles to estates already settled in the court of probate should be allowed to stand, yet there were many estates of twenty or thirty years stand- ing that had never been settled, and more of a later date, so that the suffering would only be limited, not ended. Furthermore, litigation would have at once ensued, which would have involved the colony in an economic loss greater than that entailed in a resistance to the decree. The agrarian system of the towns would have given to this litigation a curious complexity. Quarrels were certain to arise within the towns themselves regard- ing the ownership of the common and undivided lands. Would the title rest with the heirs at common law of those who received by grant from the king, that is, the patentees, or with those who as proprietors and contribu- tors to the common fund purchased the lands from the Indians, and received their shares according to the size of their families and the amount of their subscription? Judges, too, in settling all these disputes, would have been thoroughly perplexed as to whether they should obey the decree, in which case the foundation of the
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colony would have been "rip't up from the bottom and the country undone"; or whether they should disregard the decree, and so bring down upon the colony the loss of its charter.
But the injustice would have concerned others besides those holding lands derived from intestate settlements. Creditors who had taken lands in payment of debts-a procedure not in favor with the colony because of the cheapness of lands-would be defrauded, unless the lands, which might have considerably improved in their hands, had been made chargeable for the original loan and the improvements. Furthermore, the will and intent of many who had died intestate might have been frus- trated, inasmuch as they, trusting in the colonial cus- tom, with which they had been perfectly satisfied, had made no will.
In addition to these results, so contrary to justice and equity, certain economic consequences would have in- evitably followed the carrying out of the order in council, consequences detrimental not merely to the colony, but, judging from the standpoint of her clearly avowed colo- nial policy, to England as well. The voiding of the law meant the abatement of husbandry. The towns of all New England, and of Connecticut in particular, were, at this stage of their development, predominantly agri- cultural. The results of such abatement would be a de- sertion of lands, a lessening of population, and a decrease in the supply to the neighboring provinces, which, en- gaged in trade and fishery, were dependent on Connecti- cut for provisions. It was a clever stroke on the part of the colonial supporters of the law when they showed that its confirmation was adapted to the furthering of England's policy, and that its vacation was to the injury of that policy. Voiding the law would lead to manufac-
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turing, for the younger sons from sheer necessity, driven from agriculture, would turn to trade and manufacturing, or else would be obliged to leave the country. Thus, by this argument, England was placed on the horns of a dilemma as regards the colonies, either beggary or in- sufficient population on the one side, or the promotion of trade and manufactures on the other. This, as Law surmised, "was a tender plot," and there is no doubt that as an argument it was frequently repeated in order that it might be "thôt of at home." These economic results are sufficient to show that the law was an organic part of the life of the colony. Indeed, as Talcott said in a later letter to Francis Wilks in London, "we cannot think our law will be looked upon to be contrary to the law of England for the colony could not have been settled without it."
The colony immediately made every effort through its agents, Dummer, Belcher, and Wilks, to defend the law if possible. There was reason for hope in such action from the fact that the Massachusetts law of 1692, after which the Connecticut law has been modeled, with one amendment, one addition, and three explanatory acts had been confirmed by the crown. Furthermore, the law was a general one in New England and, if the order in council were to be insisted on, it might endanger the titles to a considerable amount of New England real estate; and it would seem incredible that the home gov- ernment could persist in so crippling the colonies. There- fore the colony was justified in believing that, if all the arguments were fairly presented to the Board of Trade, the good offices of that board might be obtained. This was an important step, for by the report of the committee of the council the matter had been referred to the board.
The strongest argument against the law was that it
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was contrary to the law of England, and in the discussion which followed the colony exerted all its strength to mini- mize the force of this argument. The question is an im- portant one in itself, but the value of the discussion lies in the expression of opinion on the part of the English and the colonial authorities regarding the interpretation and strict construction of the phrase "contrary to the law of England." There were three views held regarding the English law in the colonies, as to how far it was binding there, and to what extent the colonial corporations had been invested by their charters with law-making powers. The first of these opinions was held by all those who were opposed to the colonial prerogatives, such as Palmes, Hallam, Gershom Bulkeley, in his "Will and Doom," Winthrop the appellant, in his "Complaint" and "Memo- rial," Dudley and others. According to this view the colonies were erected as corporations within the kingdom of England; they held by and were subject to the laws of that kingdom, and their legislative power extended to the making of by-laws and ordinances only for their own good government, provided the same were not contrary to the law of England. From this point of view all laws passed by the colonial assemblies which were of a higher character than by-laws, and which, even within that limit, touched upon matters already provided for by Eng- lish common or statute law, were illegal. The colonies were as towns upon the royal demesne.
The second view was expressed by the agent of Con- necticut, Francis Wilks, and was doubtless held by those at home who, with English proclivities, were nevertheless well disposed toward the colonies. According to this view, it followed that when the colonists came to America they brought with them the common law to which they were entitled as Englishmen, and such part of the statute law
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as was in force before the settlement of the plantations took place. To this body of law, written and unwritten, binding on the colonies, was to be added all such later acts of parliament as expressly mentioned the planta- tions, and such acts as had been re-enacted for the colony by her own legislature. But no other statutes passed since the settlement could be held as binding. Therefore, according to Wilks, that law was contrary to the law of England which was contrary to the common and stat- ute law prior to the settlement, or to the statute law made afterwards which expressly mentioned the planta- tions.
Both of these views, however, were strictly opposed by the colony. To the statement that the common and stat- ute law existent at the time of the settlement was in force in the colonies, the answer was made that the charter nowhere directed the administration to be according to one law or another, whether civil, common, or statute law; that by a decision of the council itself an uninhabited and conquered country was to be governed by the law of nations and of equity until the conqueror should declare his laws, and that if such declaration had not been made, then it was evident that the law of equity and of nations governed and not the common or statute law of England. Therefore, the colony argued, English common law could be binding beyond the sea only in case it had been accept- ed by the colonist's own choice. From the nature of the laws passed, it is evident that the colonial government never considered the common law to be in force within its jurisdiction, and in this belief it said it had never been corrected or otherwise instructed from the throne. In this connection Governor Talcott pertinently asks, "And why should we be directed to make laws not con- trary to the laws of England if they were our laws, for
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what propriety can there be in making that a directory to us in making a law which was our law before we made it." As this was the case, it is evident that something more was implied in the charter than the making of by-laws. In that document was proposed an object, the religious, civil, and peaceable government of the colony, which could not have been attained by the passing of by- laws. The charter implied a power to enact in the colony that which was law in England and also any good and wholesome law which was not contrary to it; and such limitations could not be to by-laws only. Furthermore, the colony insisted that the analogy to a municipal cor- poration in England was not sound, inasmuch as it was the privilege of Englishmen to be governed by laws made with their own consent. The colonies were not represented as were the English towns in parliament; therefore the only laws made with the consent of the colonies were those of their own legislatures, and those were more than by-laws. The opinion of the colony, therefore, was that the phrase, "contrary to the law of England," referred only to laws contrary to those acts of parliament which were in express terms designed to extend to the plantations. That this had been the practice as well as the theory in Connecticut is evident from Congreve's letter to the Board of Trade, in which he says, "They allow of none of the laws of England either common or statute to be pleaded in their courts."
According to the opinion held by Winthrop and Wilks the intestate law was clearly contrary to the law of England. Even Lieutenant Governor Law of the colony seems to have inclined to this view, for he came to the conclusion that the colony in acting in the past, contrary to the view expressed by Wilks, had been mistaken. But Governor Talcott was led into no such concession; he
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stood firmly on the ground already taken, and adroitly persisted in maintaining the complete validity of the intestate law. He probably realized that under the cir- cumstances concession was more dangerous than resist- ance, and that to accept Wilks's theory would be to strike a blow at the absolute integrity of the charter. "We would," he writes, "with the greatest prostration request your Majesty, that when we find any rules of law needful for the welfare of your Majesty's subjects here, which is not contrary to and agrees well with some one of the Tryangles of the law of England, as it then is, or heretofore had been, when England might have been under the like circumstances in that particular, which we are when we make the law, that it might not be deter- mined to be contrary to the law of England."
The opinions of the English lawyers of this period, so far as I am able to discover them, are neither definite nor complete. In a report to the Board of Trade, Attorney General Yorke and Solicitor General Talbot upheld the colony's position regarding by-laws. They affirmed that the assembly of the colony had the right by their charter to make laws which affected property, on condition that such laws were not contrary to the law of England; but, although it seems probable that they intended "law of England" to cover the whole law, they did not make it clear what they meant by this term. Yet these same lawyers in a later judgment declared that in one partic- ular case, the barring of an heir to entailed lands lying in the plantations by a process of fine and recovery in England, the common law did not extend to the planta- tions, unless it had been enacted in the plantation where the entailed lands lay. The board itself supported the colony against adverse criticism when it stated that according to the charter the laws were not repealable by
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the crown, but were valid without royal confirmation unless repugnant to the law of England.
The most definite expression of opinion, however, was adverse to the view which the colony took. Mr. West, the first standing counsel to the Board of Trade, in a judgment rendered regarding admiralty jurisdiction in the planta- tions, took the ground that wherever an Englishman went there he carried as much of law and liberty with him as the nature of things allowed; that, in consequence of this, the common law of England was the common law of the colonies, and that all statutes in affirmance of the common law passed in England antecedent to the settle- ment of any colony were binding upon that colony. He also held, as did Wilks, that no statutes made since the settlements were in force unless the colonies were particu- larly mentioned. His view, which I do not doubt was very generally held by English lawyers outside of the colony, was simply a legal opinion, and was probably based on little real knowledge of the subject to which it referred. We are, therefore, fortunate in having another and differ- ent view of the matter of greater practical value. In 1733 Francis Fane, who succeeded West as standing counsel to the Board of Trade, returned to the board his com- ments upon the first installment of the laws of Connect- icut and he completed his examination of the entire 387 laws in 1741. In this report opinion came face to face with facts, and the lawyer realized the anomaly of attempting to force English law upon a people whose conditions of life were in so many particulars different from those at home. In his comment upon the intestate law Fane notices that it was different from the law of England, but it is evident that this aspect of the case troubles him little. He is chiefly concerned with matters of rule, form, and procedure, and it is in these particulars
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