USA > Connecticut > Tercentenary pamphlet series, v. 1 Connecticut and the British Government > Part 5
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that his real objection to the law lies. He recommends the repeal of the act, but would substitute another law "either as it is now done in England or by such other methods as may best fit the province where this law is to take effect."
In this explicit statement there was for the colony a world of meaning. Furthermore, in his criticism of the later amendments and additions to the law he says nothing about their being contrary to the law of England; his recommendations for repeal are based upon the ground of uncertainty or upon some other defect of the law which would naturally attract a lawyer. An analysis of his comments upon the remaining 384 laws gives us approximately the same result. The laws recommended for repeal were too strict, severe, or unreasonable, incom- plete or not severe enough, inexact, giving too much power to certain bodies, etc. In only one instance is a law declared contrary to the law of England, and then it is the legal principle implied in a part of the law that a man can be convicted on a general presentment which is declared repugnant. It is true that in a number of cases he recommends the repeal of a law which is different from the law of England, but it is not on the ground of its difference that the recommendation is made; it is because the law is unsatisfactory from a legal standpoint and would not be a good law in any civilized community. In nine cases, however, he considers the colony's con- venience, and recommends the acceptance of the law, even though it would not have been proper for England or was not so good as the corresponding law in England. In these instances he recognizes the principle that the colony was generally the best judge of its own law, and practically concedes two of the points for which the colony contended, the principle of equity and that of
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custom. Fane's comments are uniformly fair and reason- able, and contain not a trace of animus toward the colonies.
The circumstances and discussions thus far outlined are necessary to an understanding of the influences that acted upon the board when it came to draw up its repre- sentation to the committee of the council upon the petition of Belcher and Dummer. In this petition the colony begged the king to confirm by an order in council to the inhabitants of the province the lands already distributed under the intestate law, to quiet them there- in, and to enable them to divide the lands of intestates in the same manner in the future. The colony had already discussed at considerable length the wording of the petition, debating whether it would be best to ask for a confirmation by an order in council, or to apply for leave to bring forward a bill in parliament. Belcher strongly advocated the latter method. Talcott in a forcible com- munication presented his fears of parliament in case the matter were brought to its attention, and he had good reason to fear if we are to judge from later events. He was a prophet in his apprehension that it might lead parlia- ment to inquire whether the government had not accus- tomed itself to take the same liberty of making other laws contrary to the law of England; and, further, that it might lead parliament to the opinion that the charter had not made them a government or a province but only a corporation. Yet, on the other hand, it was equally true that neither the petition of Belcher nor the introduction of a bill in parliament was needed, if that body had de- sired to end the privileges of Connecticut in 1730 as it practically did those of Massachusetts in 1775.
It is not quite clear to which conclusion the agents arrived, though in the petition upon which the board
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based its representation, confirmation was asked for by an order in council. This request at once raised an exceed- ingly important question expressive of the political change which had come over England since the Revolu- tion of 1689. Could the king by virtue of his prerogative and without the assistance of parliament grant the wish of the colony? To this Fane answered at the request of the board, as follows:
I cannot pretend to say whether the King by virtue of his prerogative can do what is desired by the petitioners. But I must submit it to your Lordship's consideration supposing the King had a power by his prerogative of gratifying the re- quest, whether under the circumstances of this case it would not be more for his Majesty's service to take the assistance of Parliament, as that method will be the least liable to objection as well as the most certain and effectual means of gratifying the request of the petitioners.
That this was the opinion widely held among English lawyers is evident from Belcher's letters, in which he mentions Lord Chancellor King and the counsel which he had secured as inclined to this view.
With this opinion of its legal adviser before it, the board summoned to its presence the agents of the colo- ny, and Winthrop, and listened to the arguments on both sides. It then finished the draught of its own repre- sentation. Many influences underlay the wording of that report, influences which it has been the purpose of this paper to disclose. The report was the resultant of at least three forces: first, the desire to gratify the colony in con- firming the lands already settled under the intestate law, for Dummer had ably presented the inconveniences which would follow the upholding of the decree of the council; secondly, the determination to syncopate the privileges of Connecticut on the ground that she had
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been too independent of the crown, and had too long a list of charges against her to escape some limitation of her powers; and thirdly, the conviction, in view of the changing constitutional relations of king and parliament, that the only safe method whereby such end could be accomplished was to apply to the king for leave to bring in a bill for that purpose. A few extracts from the report will exemplify this. After recommending compliance with the request of the colony, the board adds,
And we think this may be done by his Majesty's royal li- cense to pass an Act for that purpose with a saving therein for the interest of John Winthrop, Esq. But we can by no means propose that the course of succession to lands of inheritance should for the future be established upon a different footing from that of Great Britain. In return for so great a favor from the Crown we apprehend the people of Connecticut ought to submit to the acceptance of an explanatory charter whereby that colony may for the future become at least as dependent upon the Crown and their Native Country as the people of Massachusetts Bay now are whose charter was formerly the same with theirs. And we think ourselves the rather bound in duty to offer this to his Majesty's consideration because the people of Connecticut have hitherto affected so entire an inde- pendence of Great Britain that they have not for many years transmitted any of their laws for his Majesty's consideration nor any account of their public transactions. Their governors whom they have a right to choose by their charter ought al- ways to be approved by the King, but no presentation is ever made by them for that purpose. And they, thô required by bond to observe the laws of Trade and Navigation, never com- ply therewith, so that we have reason to believe that they do carry on illegal commerce with impunity, and in general we seldom or never hear from them except when they stand in need of the countenance, the protection or the assistance of the Crown.
With this report the case of Winthrop vs. Lechmere, growing as it did, out of the land system of the New
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England colonies, has brought us step by step danger- ously near to the principles and theories which underlay restriction on the one side and revolution on the other. How far this particular case and the discussions which grew out of it aided in the shaping of those principles, we need not attempt to discover. As part of the larger ques- tion of the uniting of the colonies and the annulling of the charters, its influence was direct and definite. After 1700 the fact of parliamentary supremacy was proven each time an effort was made to limit the independence of the proprietary and charter colonies and to bind them more firmly to the crown; and at the same time the con- tinuance of such efforts for thirty years increased the familiarity of parliament with the task of controlling the colonies. In this the English authorities were not showing themselves either arbitrary or despotic. The Board of Trade, the crown lawyers, even the Privy Council acted according to their convictions, which, though honest, were based undoubtedly upon insufficient and ex parte in- formation. Connecticut's policy of reticence was in part responsible for this; she had made it possible for her enemies to fill the minds of the home authorities with suspicion, and there was just enough truth at the bottom of the charges for them to be extremely effective. Other colonies as well were on the black list of the board. Among intelligent Englishmen both in and out of parlia- ment there was a strong feeling that some of the colonies were not acting consistently with the interests of Eng- land, and needed the strong hand of parliament to curb them, even to the taking away of their treasured privileges.
But the blow was not to fall yet. Parliament was per- haps not yet prepared to intervene in the management of colonial affairs, however general the opinion seemed to be that it had a right, in view of the events of 1689, to
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assume this function of the royal prerogative. Although for thirty years ample opportunities for so doing had been given, yet the rights and privileges of the charter colonies remained unimpaired. Perhaps the colonies had given insufficient provocation; if so, time would soon render the provocation greater, not because of any de- fiant act of the colonies but because of the inevitable tendency of their economic development. The intestacy law is but a straw showing the direction of the wind; it has a legal stamp upon it but it is in origin and effect an economic measure.
The representation of 1730, followed soon after by that of 1733 to the House of Commons, resulted in a vehement body of resolutions of the House of Lords, but no further effect was seen. One session of parliament passed and still another, but, as no steps were taken pursuant to the resolutions, the colony began to breathe more freely. That it would have resisted the acceptance of an explan- atory charter is evident; it is fortunate that it was never called upon to put the matter to the test. While the fate of Connecticut was thus hanging in the balance, another case, that of Phillips vs. Savage, was carried by appeal from the superior court of Massachusetts to the king in council. Here a decision in favor of the intestacy law gave new courage to Connecticut, and in another private suit, that of Clark vs. Tousey, the matter was again brought before the king in council. The appeal was dismissed, however, by the Privy Council in 1745, not through any decision as to the right or wrong of the case, but because of the fact that Clark had not prosecuted the appeal within a year and a day as required by the council. Connecticut accepted the dismissal as a decision in her favor, although it was in fact nothing of the kind. It ended the matter, only because no one dared to make
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another appeal and the question never came up again.
We have now followed step by step this important question from its starting point in the land system of Connecticut to its final issue in the prerogatives of crown and parliament. The land system, representing the pre-feudal idea rather than the feudal, was reproduced in America with some important changes. Out of this sprang the law of intestacy, differing in principle from that of England which rested upon feudal law. This dif- ference between the common law of the two countries was taken advantage of by certain disaffected ones of Connecticut who sought to benefit themselves by appeal- ing to England against the colonial law. This matter, at first private, touching the lands and interests of but a few persons, became of wider importance by the vacation of the law by the king in council. By this the agrarian harmony of Connecticut, and possibly of New England, was threatened. This roused the colony, and the issue became a part of the larger question of the relations of the proprietary and charter colonies to the crown. This made the matter of importance not merely to Connecti- cut and New England, but to the other colonies of this class as well. But the influence of the Winthrop case did not stop here; it passed even higher, and raised the ques- tion of fundamental importance to all the colonies as to the constitutional relations of crown and parliament. The settlement of this question foreshadowed the action which parliament was to take forty years after.
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974.6 054 no. 3
Connecticut. History
TERCENTENARY COMMISSION OF THE STATE OF CONNECTICUT
QUI
SUSTINET
TRANSTULIT
1
COMMITTEE ON
HISTORICAL PUBLICATIONS
The Charter of Connecticut 1662
PUBLISHED FOR THE TERCENTENARY COMMISSION BY THE YALE UNIVERSITY PRESS 1933
TERCENTENARY COMMISSION OF THE STATE OF CONNECTICUT
COMMITTEE ON HISTORICAL PUBLICATIONS
The Charter of Connecticut, 1662
T HE charter of Connecticut was granted to the colony by Charles the Second, King of England. It is dated April twenty-third, "in the Fowerteenth yeare of our Reigne," which was 1662, and was validated by the affixing of the great seal of the realm on the tenth of May following. This charter formed the basis of the rights and powers of the inhabitants of the colony and was in effect the constitution of Connecticut for more than a century and a half. It is now the state's most precious relic of its early history.
At the time it was granted, the charter was issued in duplicate; that is, two charters practically identical were made and sealed for the colony. Each of the two was a valid charter, and each was called a "duplicate" in the text of the other. One of these charters was mutilated about 1817 when, either because its identity was not recognized or its historical significance not appreciated, it was cut up to form the lining of a lady's bonnet. About two-thirds of the second of the two parchment sheets upon which it is believed to have been written now remains. This fragment together with small portions of the green wax seal from one of the charters are now in
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the custody of the Connecticut Historical Society at Hartford.
The other charter, written on three sheets of parch- ment and complete except for the loss of its seal, is now preserved in a special fireproof safe in the Memorial Hall of the State Library and Supreme Court building at Hartford. It is from this charter that the text of the document which follows has been copied.
No attempt has been made in printing to reproduce the large and elaborate letter C surrounding a portrait of the sovereign which begins the document or the enlarged letters of the six words forming the first line. Neither has attention been given to the heavier strokes of the engrosser's pen which serve to give emphasis to occasional words in the text.
The charter was first printed in 1718 from the text of the now imperfect document and this text continued to be used, in all official printings at least, until 1852. In that year it was officially printed in the second volume of The Public Records of the Colony of Connecticut from the document now in the custody of the Connecticut State Library, the same from which the accompanying text is printed.
ALBERT C. BATES
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Passage of the Charter through the Seals.
A LETTERS patent under the great seal was a document of the highest importance and to obtain it was often a tedious and expensive process. The procedure was defined by an act of 1535 and remained essentially unaltered until the entire system of the seals was reorganized by acts passed in 185I and 1884, greatly simplifying the process.
The events precedent to the issue of the charter are as follows. As soon as the news of the restoration of Charles II was received in the colony a hurried gather- ing was called by Governor Winthrop of such magistrates and deputies as could be assembled. These men agreed to recommend to the next General Court, that of March, 1661, the duty and necessity of dispatching a speedy ad- dress to "our Soveraigne Lord Charles," declaring that the inhabitants of the colony were "his Highness loyall and faythfull subjects" and asking for "the continuance and confirmation of such priviledges and liberties" as were necessary for "the comfortable and peaceable set- tlement" of the colony.
At the next court, that of May, a committee was ap- pointed to perfect the address, which in the meantime had been drawn up by the governor, and to frame a pe- tition for presentation "to his Matie," together with letters to such "noble personages" as might be thought favorable to the colony, such as the Earl of Manchester, Lord Saye and Sele, Lord Brooke, and others of the old
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Warwick patentees. This petition was accompanied by a rough and probably very incomplete statement of what the colony wanted. At the same time a body of instruc- tions was prepared that presented in greater detail sundry matters of a more particular nature. These documents were presented at the meeting of the court in June and approved. As Winthrop was to be the colony's agent in transacting the business, the court gave him a fairly free hand to do as he liked, allowing him to write additional letters if he thought best and to present any further peti- tion that he deemed necessary. It appropriated £80 for his expenses and £ 500 to meet official costs. He was ex- pected to obtain, if possible, a confirmation of the old Warwick Patent, a copy of which he fortunately found among the Hopkins papers; and such confirmation, with the additions and enlargements desired, was to take the form of a royal letters patent or charter. Winthrop was specially enjoined to see that the "liberties and privi- ledges inserted in the Pattent" were "not to be inferiour or short to what is granted to the Massachusetts."
Winthrop, bearing the address, petition, and letters, and a letter of credit authorizing him to charge bills on the colony to the value of £ 500, sailed from New Am- sterdam on the De Trouw. In London he lived in Coleman Street, Lothbury, at the house of William Whiting, more than two miles from Whitehall where most of his work was to be done. In the course of his activities he was probably advised that the address drawn up in the colony was not in satisfactory form, and therefore he drafted or caused to be drafted another and more suitable text, in which he petitioned for a "Renual of the [Warwick] Pattent under your Maties greate Seale." He probably also rewrote, with the assistance of a lawyer familiar with Chancery requirements, the form in which the charter
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was to be issued, though the final wording would of neces- sity be the work of the crown officials themselves.
The petition and draft, thus revised to meet the de- mands of the occasion, were handed in some time before February 6, 1662, and were received by one of the princi- pal secretaries of state, Sir Edward Nicholas, who at this time was nearing the end of his career, for he was sup- planted by Sir Henry Bennet the October following. He was sixty-nine years old and in all his official duties was overshadowed and greatly influenced by the lord chancel- lor, the Earl of Clarendon, to whom more than to anyone else Connecticut owes her charter.
After perusal and consideration by the secretary of state the petition and draft were referred to the attorney- general, one of the two law officers of the crown, at this time Sir Geoffrey Palmer. The reference was accompanied by a memorandum attached to the face of the petition, which bears the date February 12. The report of the attorney-general was endorsed on the back of the petition -the exact date of the endorsement is illegible on the document itself-sometime between February 12 and 28, for the report was received by the secretary on the latter date. The secretary, acting under instructions from the King in council caused to be issued a warrant under the King's sign manual directed to the attorney-general and instructing him to prepare the text of the charter in the form known as the King's Bill, an instrument that generally but not always bore the King's signature. This warrant is dated February 28, the day the secretary received the report of the attorney-general. The latter had under his charge the Patent Office, or Patent Bill
I The best account of the preliminaries leading to the issue of the charter is by Albert C. Bates, The Charter of Connecticut, Connecticut Historical So- ciety, 1932.
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Office, as it was sometimes called, and on receiving the warrant from the secretary instructed the clerk of the patents to make two copies of the bill, after which the original petition and draft were returned to the attorney- general, who retained it in his possession. After the two copies had been made the original King's Bill was sent to the secretary of state for the King's signature and was then dispatched to the Signet and Privy Seal Offices for comparison.
The two engrossed copies of the King's Bill, which were made by the clerks of the Patent Office, were delivered, one to the Signet Office, as the latter's warrant for the issue of the Signet Bill, and the other to the Privy Seal Office. In the case of Connecticut the King's Bill, dated April 5, was put in charge at the Signet Office on April 14, and was compared by one of the four clerks with the copy sent by the secretary, for the purpose of checking up mistakes. Slight verbal errors were almost impossible to avoid, where so much copying was to be done, but deliberate alterations were certain to meet with detection and were probably never attempted. When comparisons were completed in the Signet Office, the Signet Bill was prepared, which was merely the King's Bill with the signet affixed, and was carried to the Privy Seal Office, which in Connecticut's day was only a few steps away on the north side of Whitehall Court. It was the warrant for the Lord Privy Seal to prepare the Writ of Privy Seal, which, as far as the text went, was the finished charter. The Writ of Privy Seal was engrossed by the clerk of the reports, who added the royal "style" at the beginning and the testing clause at the end, affixed the seal, and signed the instrument. The name "Howard" at the end of the Connecticut charter is undoubtedly that of the clerk of the reports in the
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Privy Seal Office. The Lord Privy Seal at the time was John Robartes, first earl of Radnor, and the original Signet Bill should be found somewhere among his papers, if such are still in existence.
One copy of the Writ of Privy Seal was carried to the lord chancellor possibly by Winthrop himself, and an- other was sent to the Six Clerks' Office in Chancery Lane, where it was duly entered on the Patent Rolls. Were the charter in our State Library to be in any way impaired or destroyed an accurate text could be obtained at any time from that source. When the lord chancellor received the Writ of Privy Seal he wrote upon it, April 21, the word "recepi," which was the mark of his approval and his warrant to the clerk of the patents to prepare two engrossed and illuminated copies, exact textual repro- ductions of the Writ of Privy Seal, to be ready for the affixing of the great seal. The work of engrossing the parchments was the task of a specially skilled engrossing clerk in the Patent Office, who was familiar with the court hand of the day and gifted with considerable artistic ability and cleverness at penmanship. When all was ready the deputy of the lord chancellor, accompanied by the clerk of the Crown Office or his deputy and the clerk of the Hanaper, each of whom registered the two in- struments and received a substantial fee therefor, attended the Chaff Wax, who provided and prepared the wax for the great seal and himself or his deputy looked after the actual business of attaching the seal to the instrument. Not until the seal was attached was the charter a legal document. Of the two copies engrossed and sealed, each was a duplicate of the other and each a true patent possessing equal validity with its fellow.
In the case of the Connecticut charter all the formal documents noticed above and all docquets which were
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prepared in the Signet and Privy Seal Offices and recorded in the Docquet Books of those offices are still to be found in the records of the various departments and officials. The time required for the completion of the charter, about two and a half months, from the handing in of the petition to the affixing of the great seal, is less than in some instances and may be considered a fair average. Of the final cost of procuring the charter we have no cer- tain knowledge, nor are we sure that the £500 appropri- ated by the colony was sufficient to meet all expenses. For the payment of this sum the treasurer, John Talcott, made himself personally responsible, but there is nothing to show that he was ever called upon for any part of the payment. The cost was met by a levy in grain upon the towns-two-thirds wheat and one-third pease, dry and merchantable-which was sent to New London for ship- ment in carts, boats, or canoes, pressed into service or hired for the purpose. Where the grain was ultimately sold is not recorded.
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