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LOCAL LAW IN CONNECTICUT HISTORICALLY CONSIDERED.1
[Communicated by Hon. William Chauncey Fowler, LL.D., of Durham, Conn.]
Local Law is a relative term. As used in this paper, it means the laws of the town as distinguished from the laws of the colony or the state; or the laws of the colony as distinguished from the laws of Great Britain; or the laws of the state as distinguished from the laws of the United States.
The Towns On The Sea-side.
In the month of June, 1637, a company of English emigrants arrived in Massachusetts, under the leadership of John Davenport and Theophilus Eaton. Strong inducements were offered them to settle in that colony, near Boston; namely, lands for their habitations, and a place in the civil government for Mr. Eaton, and a place in the Synod, to be held that year, for Mr. Davenport.
But they had just escaped from laws made for an empire and not adapted to their local wants, laws made by others and not by themselves. They did not feel inclined to submit themselves to Massachusetts rule, or to involve themselves in the religious disputes, then rife there. They had certain ideas of their own, on civil polity and religion, which they wished to carry out; and accordingly, after a reconnoissance by some of their number, they came to Quennipiac, now New-Haven, in the month of April, 1638, to be subject only to the local laws which they themselves should enact. They had, when in England, suffered enough from ecclesiastical and civil laws made by others; and they determined to make their own local laws and thus enjoy civil and religious liberty. If, when in England, some of their number enjoyed the right of suffrage in the election of members of the House of Commons, this right was of little practical value, inasmuch as they were overborne by majorities in that branch, or at least by the superincumbent weight of the other two branches of the government.
Soon after their arrival here, they united in a "plantation covenant," in which they declare, "that as in matters that concern the gathering of a church, so likewise in all public offices which concern civil order, as choice of magistrates and officers, making and repealing laws, dividing allotments of inheritance, and all things of a like nature, we would all of us be ordered by the rules which the Scripture holds forth to us." This "plantation covenant" was an equivalent of the covenant entered into by the children of Israel, when they went into the promised land; an equivalent of the compact made on board the Mayflower by the settlers of Plymouth. This plantation covenant virtually announces the purpose to make their own local laws, in ecclesiastical and civil concerns, under the teaching of the Scriptures interpreted by themselves.
On the 9th of June, 1639, the planters laid the foundation of their ecclesiastical and civil polities. They decided that none but church members should exercise the right of suffrage, and provided for the election of seven of their number to be "pillars" of the church to be formed, who should have power to admit others to membership, in accordance with the local law.
1 The substance of this paper was read before the New-england Historic-genealoGical Society, Dec. 2, 1808.—Ed.
The members of the church thus formed being free planters, having the right of suffrage, all met together as one body, on the 25th of October, and took all the civil power into their own hands. This plantation or town meeting they styled the General Court. Having adopted the "Freeman's charge" they proceeded to elect a magistrate, namely: Theophilus Eaton, and four deputies, namely: Robert Newman, Matthew Gilbert, Nathaniel Turner, and Thomas Fugil, to assist the magistrates. They also elected Thomas Fugil notary to keep a record of the doings of the general court, and of the doings of the magistrates; and Robert Seelt, a marshal to act under the direction of the magistrates.
Thus was the town organized by local law, independent of all other towns. Thus was the church constituted by local law, independent of all other churches. Thus the civil government was formed by local law, independent of all other governments. Thus the body politic, complete in itself, teres atque rotundus, acknowledging no earthly superior and no political ally, claimed and exercised the rights of sovereignty and of self-government in the limits of the plantation or town.
The settlers of Wepauwaug, or Milford, adopted substantially the same course. They too had their Aaron and Moses: Peter Prudden and "wilLiam Fowler; their seven "pillars," their independent church, and their independent body politic; their general court, and their magistratical court. There was, however, this difference, that they admitted into their body politic six planters, who were not members of the church.
The settlers of Menunkatuck, Guilford, in like manner, had their Aaron and Moses: Henry Whitfield and Samuel Desborough; their seven "pillars," their independent church, their independent body politic, their general court, and their magistratical court.
Thus each of these three towns on the sea-side was, in 1639, a separate and independent commonwealth, in which a sovereign law, the state's collected will, sat empress." In form, in spirit, and affection for each other, they were sisters. In the eyes of their admirers, they stood, each complete in herself; like the three sister Graces on the shore of the Aegean Sea, with arms linked in mutual love, each moving at " her own sweet will."
How it was, historically, that these three several communities were formed; what were the elective affinities which held each community together; how it was in each case that the church crystallized upon the minister as a nucleus, and the body politic crystallized upon the church, it is foreign to my purpose to inquire. From historical facts and from the declarations of Hubbard, the historian, and of Governor Winthrop, there is abundant evidence that each town "intended a peculiar government," under which it should be ruled only by its own local laws, and not by any foreign laws. See vol. i. p. 110, N. H. Colony Records.
But there were also three other towns, namely: Tetohet or Branford, Rippoloams or Stamford, Tenycott or Southold, whose condition was not that of independent towns governed by their own local laws; but were subject, in part, to the town of New-Haven. It appears that this latter town, New-Haven, possessing comparative wealth, purchased of the Indians, the territory on which these several towns were settled, and sold it to the prospective settlers, on terms which made each of these several towns dependent on New-Haven in civil matters; though the several churches were entirely independent: In the case of Branford, the contract made with Samuel Eaton, not being carried out, was replaced by one with Samuel Swayne and others. The settlement did not take place until 1644, when the towns had combined in the colony. In the case of Stamford, in the contract made with Robert Coe and others, of Wethersfield, 1640, is the following provision: "that they Join in all points with this plantation [New-Haven] in the form of government here settled, according to the agreement betwixt this Court and Mr. Samuel Eaton about the plantation at Tetoket." The relations of Southold to New-Haven were much as those indicated by the contract with Branford and Stamford. It is evident that these three towns never enjoyed the full liberty of making their own local laws, limited as they were, first by their contract with the town of New-Haven, and then by the jurisdiction of the colony of New-Haven. Thus in 1G42, " Goodman Warde of Stamford was in the Town of New-Haven chosen Constable for Stamford this ensuing year." N. H. C. R. vol. i. p. 78. The relations of these three towns to that of New-Haven were, in purpose or fact, partly functional and partly organics and were somewhat like those of patron and client: they being subject to New-Haven, but in part governed by their own local laws. Their history shows that they placed a high value on the right to make their local laws; and had no disturbing force come in, it is probable that, instead of being satellites of New-Haven, they would have claimed and enjoyed entire independence in civil as well as ecclesiastical concerns. At least, sufficient evidence is forth-coming that, in each town, there was great dissatisfaction with a subordinate condition in which they were not allowed to make their own laws.
The Same Towns In Combination.
But if the three leading towns had indulged a dream of single blessedness, in which they expected to enjoy all the advantages set forth by Plato in his ideal Republic, or by Sir Thomas More in his Utopia, that dream was destined to be disturbed by the formation of the "Confederacy of the United Colonies of New-England in 1663." These towns could not enjoy the advantages of this confederation unless they themselves should previously combine or confederate under one jurisdiction that could act for the whole. And they could not thus combine under one jurisdiction without practically delegating a portion of that autonomy or self-government in which they each had rejoiced. The caption of the articles of confederation indicates the relations sustained by the towns to each other: "Articles of confederation betwixt the plantations under the Government of Massachusetts, the plantations under the Government of New Plymouth, the plantations under the Government of Connecticut, and the Government of New-Haven with the plantations in combination with it." This phraseology was adopted by a kind of prolepsis, in anticipation that these towns would combine under one jurisdiction. The articles were adopted in Boston, May 19, 1643; Theophilus Eaton and Thomas Gregson acting for the town of New-Haven, and prospectively for the other towns, but without any formal authority from them. The expected combination of the towns took place, or had taken place, October 27, 1643; when the several towns, by deputies, held the first meeting of the general court for the jurisdiction at New-Haven. The town of Branford was not yet organized; Southold had joined the combination, but was not present by deputies. In the general court for the jurisdiction of the colony the several towns had an equality; each town, whatever was its population, was represented by two deputies. There was the governor, the deputy-governor, and as many magistrates from the several towns as their necessities required; a secretary, a treasurer, and a marshal. Thus was the organization of the jurisdiction or colony formed, complete in itself. The basis of this organization was agreed upon at this first meeting of the general court. See N. H. Col. Records, vol. L p. 112. It would exceed the limits of this paper to state what were the powers delegated by the towns to the jurisdiction or colony, and what were the rights reserved to themselves. The towns only, as such, were represented in the general court. The towns, as integral elements, constituted the jurisdiction, or the colony.
In regard to this combination of the towns into what is called the NewHaven Colony, I would remark —
First:—That it was produced, not by the attraction of the towns to one another, but by the fear of the Indians or other enemies.
Second:—Milford, acting independently, had admitted to the right of suffrage six planters who were not members of the church. An arrangement was therefore made between that town and New-Haven, by which these six voters were allowed still to vote in town matters, but not on what pertained to the jurisdiction of the whole colony; to which was annexed the condition that Milford should not thereafter admit any others not members of the church to that right; thus giving up one of its own local laws.
Third:—By thus combining to form the jurisdiction of New-Haven colony, the towns practically gave up a portion of their power to form their own local laws, and assumed a position subordinate, in some respects, to the jurisdiction of the colony.
With this subordinate position some of the towns were not entirely satisfied. The Rev. E. B. Huntington, in his History of Stamford, uses the following language (p. 73):—" From the first there seems to have been [in that town] a degree of restiveness among the settlers, in regard to the limited franchise enjoyed under the jurisdiction of New-Haven colony. As early as 1644, but a little more than three years after the settlement, this impatience under such restriction showed itself by the secession of a portion of the colony. The Rev. Richard Denton and those who agreed with him decided to try their fortunes under the Dutch government; and accordingly removed and settled at Hamstead, Long-Island," where they could be under their own local laws, and where they allowed all the inhabitants to vote, and made it their duty to do so.
Notwithstanding this secession of twenty planters, dissatisfaction with the civil disabilities still continued; as may be seen from the second volume of the Colony Records, and from the following extract from Mr. Huntington's History, p. 77, namely, a speech by Robert Basset, in town-meeting, addressed to the law officer appointed by the jurisdiction, at New-Haven. "Let us have our votes. There is no justice in your New Haven tyranny." "We have no English laws or rights. We have no liberties. We have no justice here. We are men-asses for fools to ride, and our backs are well nigh broken. You make laws when you please, and what you please, and give what reasons you please. We are bond men and slaves, and there will be no better times for us till our task-masters are well out of the way." This was in the year 1654. "So positive hadthis dislike of the New-Haven administration become in 1653, that a formal protest seems to have been sent from Stamford, with complaints of their rates and other grievances." These difficulties, springing from a strong attachment to the right of making their own local laws, seem to have continued until the dissolution of the NewHaven confederacy, in 1665.
Similar disaffection, springing from the same cause, existed in the minds of some of the planters at Southold, which exposed them to the charge, in the general court at New-Haven, of endeavoring "to overturn the fundamental laws of the colony," in order that their own local laws might prevail in the town. Thus the people of Stamford and of Southold showed their attachment to local law in one way, as New-Haven, Milford and Guilford did in another.
The Dissolution Of The New-haven Confederacy.
On the 20th of April, 1662, His Majesty, Charles the Second, granted a charter to Connecticut, including the colony of New-Haven. So strong was the opposition in this colony to a union with Connecticut that it was not consummated until May 11, 1665, more than three years after the date of the charter. This opposition was grounded on the fact that, by being merged in Connecticut, the colony would lose the liberty of making its own local laws.
It is true, that in some of the towns there were those who preferred the laws of Connecticut to those of New-Haven colony, as to the right of suffrage, and were thus prepared to secede from the jurisdiction of one colony to that of the other. And it is remarkable that the general court of Connecticut in August, 1663, raised a committee to treat, not with the general court of New-Haven, but with the towns, namely:—" with their honored friends of New-Haven, Milford, Branford and Guilford;" as if they were separate and independent communities, governed only by their own local laws.
In leaving this branch of the subject, it may not be improper to say that the end aimed at by the founders of the towns in the colony of New-Haven was a noble one, whatever may be said of the means employed. If Plato in his ideal Republic, More in his Utopia, Bacon in his Projected New Atlantis, Harrington in his Oceana, and Berkeley in his Gaudentia Di Lucca, described a more perfect form of government and a higher condition of society than had ever been realized on earth, it need not seem strange that John Davenport in New-Haven, Peter Prudden in Milford, Henry Whitfield in Guilford, and Abraham Peirson in Branford, should endeavor actually to create a better civil government and a higher condition of society than the world has ever witnessed. Objections have indeed been made to some of the local laws in the towns or jurisdiction. But it should be remembered that the people made these laws for themselves and those times, and not for us in our times. They supposed that by their fundamental law limiting the right of suffrage to church members, they were to accomplish the same thing, by moral restraints upon the conscience of the voters, that in modern times is accomplished or intended to be accomplished by written constitutions, state or federal. They adopted the wise opinion that there ought to be some limitation to the right of suffrage, and also the opinion, whether wise or unwise, that this limitation should be a moral one.
The following quotation from the half-century sermon of Rev. Mr. Hotchkiss, shows what were the sentiments of the settlers of Saybrook in regard to local law. "It was in the month of November, 1635, that our Pilgrim Fathers came and established themselves in Saybrook, for the free enjoyment of civil and religious privileges without involuntary subjection to any sovereign on earth but that of the people, or to any authority but the law of heaven."
Vol. XXIV. 4