Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
§ 84. CONNECTICUT was originally settled under the protection of Massachusetts; but the inhabitants in a few years afterwards (1638) felt at liberty (after the example of Massachusetts) to frame a constitution of government and laws for themselves.1 In 1630 the Earl of Warwick obtained from the council of Plymouth a patent of the land upon a straight line near the seashore towards the southwest, west and by south, or west from Narraganset river forty leagues, as the coast lies, towards Virginia, and all within that breadth to the South sea. In March, 1631, the Earl of Warwick conveyed the same to Lord Say and Seale and others. In April, 1635,2 the same council granted the same territory to the Marquis of Hamilton. Possession under the title of Lord Say and Seale and others was taken of the mouth of the Connecticut in 1635.3 The settlers there were not, however, disturbed; and finally, in 1644, they extinguished the title of the proprietaries, or Lords, and continued to act under the constitution of government, which they had framed in 1638. By that constitution, which was framed by the inhabitants of the three towns of Windsor, Hartford, and Weathersfield, it was provided, that there should be two general assemblies annually; that there should be annually elected, by the freemen, at the court in April, a governor and six assistants, who should “have power to administer justice according to the law here established, and for want thereof according to the rule of the word of God.” And that as many other officers should be chosen, as might be found requisite.4 To the general court each of the above named towns was entitled to send four deputies; and other towns, which should be afterwards formed, were to send so many deputies, as the general court should judge meet, according to the apportionment of the freemen in the town. All persons, who were inhabitants and freemen, and who took the oath of fidelity, were entitled to vote in the elections. Church membership was not, as in Massachusetts, an indispensable qualification. The supreme power, legislative, executive, and judicial, was vested in the general court.5
§ 85. The colony of New-Haven had a separate origin, and was settled by emigrants immediately from England, without any title derived from the patentees. They began their settlement in 1638, purchasing their lands of the natives; and entered into a solemn compact of government.6 By it no person was admitted to any office, or to have any voice at any election, unless he was a member of one of the churches allowed in the dominion. There was an annual election of the governor, the deputy, magistrates, and other officers, by the freemen. The general court consisted of the governor, deputy, magistrates, and two deputies from each plantation;7 and was declared to be “the supreme power, under God, of this independent dominion,” and had authority “to declare, publish, and establish the laws of God, the Supreme Legislator, and to make and repeal orders for smaller matters, not particularly determined in Scripture, according to the general rules of righteousness; to order all affairs of war and peace, and all matters relative to the defending or fortifying the country; to receive and determine all appeals, civil or criminal, from any inferior courts, in which they are to proceed according to scripture light, and laws, and orders agreeing therewith.”8 Other courts were provided for; and Hutchinson observes, that their laws and proceedings varied in very few circumstances from Massachusetts, except, that they had no jury, either in civil nor criminal cases. all matters of facts were determined by the court.9
§ 86. Soon after the restoration of Charles the Second to the throne, the colony of Connecticut, aware of the doubtful nature of its title to the exercise of sovereignty, solicited and in April, 1662, obtained from that monarch a charter of government and territory.10 The charter included within its limits the whole colony of New-Haven; and as this was done without the consent of the latter, resistance was made to the incorporation, until 1665, when both were indissolubly united, and have ever since remained under one general government.11
§ 87. The charter of Connecticut, which has been objected to by Chalmers as establishing “a mere democracy, or rule of the people,” contained, indeed, a very ample grant of privileges. It incorporated the inhabitants by the name of the Governor and Company of the Colony of Connecticut in New-England, in America. It ordained, that two general assemblies shall be annually held; and that the assembly shall consist of a governor; deputy governor, twelve assistants, and two deputies, from every town or city, to be chosen by the freemen, (the charter nominating the first governor and assistants.) The general assembly had authority to appoint judicatories, make freemen, elect officers, establish laws, and ordinances “not contrary to the laws of this realm of England,” to punish offenses ” according to the course of other corporations within this our kingdom of England,” to assemble the inhabitants in martial array for the common defense, and to exercise martial law in cases of necessity. The lands were to be holden as of the manor of East Greenwich, in free and common soccage. The inhabitants and their children born there were to enjoy and possess all the liberties and immunities of free, natural-born subjects, in the same manner as if born within the realm. The right of general fishery on the coasts was reserved to all subjects; and finally the territory bounded on the east by the Narragansett river, where it falls into the sea, and on the north by Massachusetts, and on the south by the sea, and in longitude, as the line of the Massachusetts colony running from east to west, that from Narraganset bay to the South sea, was granted and confirmed to the colony.12 The charter is silent in regard to religious rights and privileges.
§ 88. In 1685, a quo warranto was issued by king James against the colony for the repeal of the charter. No judgment appears to have been rendered upon it; but the colony offered its submission to the will of the crown; and Sir Edmund Andros, in 1687, went to Hartford, and in the name of the crown, declared the government dissolved.13 They did not, however, surrender the charter; but secreted it in an oak, which is still venerated; and immediately after the revolution of 1688, they resumed the exercise of all its powers. The successors of the Stuarts silently suffered them to retain it until the American Revolution, without any struggle or resistance.14 The charter continued to be maintained as a fundamental law of the State, until the year 1818, when a new constitution of government was framed and adopted by the people.
§ 89. The laws of Connecticut were, in many respects, similar to those of Massachusetts.15 At an early period after the charter they passed an act, which may be deemed a bill of rights. By it, it was declared, that “no man’s life shall be taken away; no man’s honour or good name shall be stained; no man’s person shall be arrested, restrained, banished, dismembered, nor any ways punished; no man shall be deprived of his wife or children; no man’s goods or estate shall be taken away from him, nor any way endangered under colour of law, or countenance of authority, unless it be by virtue or equity of some express law of this colony, warranting the same, established by the general court, and sufficiently published; or in case of the defects of a law in any particular case, by some clear and plain rule of the word of God, in which the whole court shall concur.”16 The trial by jury, in civil and criminal cases, was also secured; and if the court were dissatisfied with the verdict, they might send back the jury to consider the same a second and third time, but not further.17 The governor was to be chosen, as the charter provided, by the freemen. Every town was to send one or two deputies or representatives to the general assembly; but every freeman was to give his voice in the election of assistants and other public officers.18 No person was entitled to be made a freeman, unless he owned lands in freehold of forty shillings’ value per annum, or 40 personal estate.19
§ 90. In respect to offenses, their criminal code proceeded upon the same general foundation, as that of Massachusetts, declaring those capital, which were so declared in the Holy Scriptures, and citing them as authority for this purpose. Among the capital offenses were idolatry, blasphemy of Father, Son, or Holy Ghost, witchcraft, murder, murder through guile by poisoning or other devilish practices, bestiality, sodomy, rape, man-stealing, false witness, conspiracy against the colony, arson, children cursing, or smiting, father or mother, being a stubborn or rebellious son, and treason.20
§ 91. In respect to religious concerns, their laws provided, that all persons should attend public worship, and that the towns should support and pay the ministers of religion. And at first, the choice of the minister was confided to the major part of the householders of the town; the church, as such, having nothing to do with the choice. But in 1708, an act was passed, (doubtless by the influence of the clergy,) by which the choice of ministers was vested in the inhabitants of the town, who were church members; and the same year the celebrated platform, at Saybrook, was approved, which has continued down to our day to regulate, in discipline and in doctrine, the ecclesiastical concerns of the State.21
§ 92. The spirit of toleration was not more liberal here, than in most of the other colonies. No persons were allowed to embody themselves into church estate without the consent of the general assembly, and the approbation of the neighbouring churches, and no ministry or church administration was entertained or authorized separate from, and in opposition to that openly and publicly observed and dispensed by the approved minister of the place, except with the approbation and consent aforesaid.22 Quakers, Ranters, Adamites, and other notorious heretics (as they were called) were to be committed to prison or sent out of the colony by order of the governor and assistants.23 Nor does the zeal of persecution appear at all to have abated until, in pursuance of the statutes of I William and Mary, dissenters were allowed the liberty of conscience without molestation.24
§ 93. In respect to real estate, the descent and distribution was directed to be among all the children, giving the eldest son a double share; conveyances in fraud of creditors were declared void; lands were made liable to be set off to creditors on executions by the appraisement of three appraisers.25
The process in courts of justice was required to be in the name of the reigning king.26 Persons having no estate might be relieved from imprisonment by two assistants; but if the creditor required it, he should satisfy the debt by service.27 Depositions were allowed as evidence in civil suits.28 No person was permitted to plead in behalf of another person on trial for delinquency, except directly to matter of law,29 a provision somewhat singular in our annals, though in entire conformity to the English law in capital felonies. Bills and bonds were made assignable, and suits allowed in the name of the assignees.30
Magistrates, justices of the peace, and ministers were authorized to marry persons; and divorces a vinculo allowed for adultery, fraudulent contract, or desertion for three years. Men and women, having a husband or wife in foreign parts, were not allowed to abide in the colony so separated above two years without liberty from the general court. Towns were required to support public schools under regulations similar, for the most part, to those of Massachusetts;31 and an especial maritime code was enacted, regulating the rights, and duties, and authorities of shipowners, seamen, and others concerned in navigation.32
Such are the principal provisions of the colonial legislation of Connecticut.
1. 1 Hutch. Hist. 98, 99; 2 Hutch. Hist. 202; 1 Hanz. Coll. 321; 1 Holmes’s Annals, 269, 220, 228, 231, 232, 251; I Chalm. Annals, 286, 287,289; 2 Doug. Summ. 158, &c.; I Hutch. Hist. 100. The substance of this frame of government is given in 1 Holmes’s Ann. 251; and a full copy in I Haz. Collec. 437, 441.
2. 2 Hutch. History, 203; 1 Haz. Coll. 318; 1 Holmes’s Annals, 208; I Chalm. Annals, 299.
3. I Chalm. Ann. 288, 289, 290, 300; 2 Hutch. Hist. 203; 1 Haz. Coll. 395,396; 1 Holmes’s Ann. 229; 1 Hutch. Hist. 47; 1 Winthrop’s Journ. 170, 397; 3 Hutch. Coll. 412, 413.
4. 1 Haz. Coll. 437; 1 Holmes’s Ann. 251.
6. 1 Hutch. Hist. 82, 83; 1 Holmes’s Ann. 244, 245; 1 Chalm. Ann. 290; Robertson’s America, B. 10; 3 American Museum, 523.
7. 3 American Museum, 523.
8. 1 Hutch. Hist. 83, note.
9. I Hutch. Hist. 84, note; 1 Chalm. Annals, 290.
10. 2 Haz. Coll. 586; 1 Chalm. Ann. 292,293; 1 Holmes’s Ann. 320; 2 Doug. Summ. 164.
11. 1 Holmes’s Ann. 338; I Chalm. Annals, 296; Marsh. Colon. 134; 1 Chalm. Ann. 294; 2 Doug. Summ. 164,167.
12. 2 Haz. Coll 597 to 605; 1 Holmes’s Ann. 320; I Chalm. Annals, 293, 294; Marsh. Colon. ch. 5, p. 134
13. 1 Holmes’s Ann. 415, 421, 429, 442; 1 Chalm. Ann. 297, 298, 301, 304, 306; 1 Hutch. Hist. 339, 406, note.
15. 2 Doug. Summ. 171 to 176, 193 to 202.
16. Colony Laws of Connecticut, edition by Greene, 1715-1718, folio. (New-London,) p. 1.
17. Idem p. 2. — This practice continued down to the establishment of the new constitution in 1818.
18. Idem. p. 27, 30.
19. Idem. 41.
20. Colony Laws of Connecticut, edition by Greene, 1715-1718, folio. (New London,) p. 12.
21. Id. p. 29, 84, 85, 110, 141.–The Constitution of 1818 has made a great change in the rights and powers of the ministers and parishes in ecclesiastical affairs.
22. Id. p. 29.
23. Id. p. 49.
24. Colony Laws of Conn. edition by Greene, 1715-1718, folio. (New London,) p. 134.
31. Colony Laws of Conn. edition by Greene, 1715-1718 folio. (New London,) p. 84.
32. Id. p. 70.–A similar code existed in Massachusetts, enacted in 1668.