CONSTITUTIONAL HISTORY OF CONNECTICUT
Part 1


BY ROGER WELLES.
Published in Connecticut Magazine
February 1899

A CHAPTER with the above title, written by Hon. Henry C. Robinson, appears in the first volume of the “New England States,” (pp. 448—471) recently published. In commenting upon the” Fundamental Orders” of 1639 the writer says, (p. 453), “This constitution, which is the archetype of all modern written constitutions, was made and adopted by the people in mass meeting at Hartford. The statement has sometimes been made, in histories and elsewhere, that this instrument was a treaty between three towns. There is absolutely no foundation for the statement.”

Two propositions are here advanced as follows:

First. The Fundamental Orders were “made and adopted by the people in mass meeting.”

Second. That these “Orders” were not a confederation of three towns.

While the foregoing has been the generally accepted opinion, the present writer proposes to advance some reasons for believing that these “Orders” were made and adopted by the “General Court” and not by the people. And that they were more properly a “Confederation” of the three towns of Windsor, Hartford and Wethersfield, like the Confederation of the Colonies after the Revolutionary War, than a Constitution adopted by vote of the people.

THE MASS MEETING.


The first proposition—that the “Fundamental Orders” were “made and adopted by the people in mass meeting-”—seems to be contradicted by the “Orders” themselves, and by all the probabilities and circumstances then existing.

First. THE COURT LANGUAGE OF THE ORDERS. All the eleven orders, except one, are prefixed by the technical formula, “It is ordered, sentenced and decreed.” The one exception is the ninth order which has the prefatory words, “It is ordered and decreed,” leaving out the word “sentenced," contained in the other orders. This is the language of courts. This “General Court” ordinarily used the phrase, It is ordered,” in reciting official action by them taken. It is the language of courts to-day, and has been for centuries in England and America. By universal usage a court speaks officially by orders, sentences and decrees. This techpical language prefixed to these orders is the mint mark which stamps them as the coin of the General Court. It is wresting their meaning to apply them to the action of a mass meeting, and a counterfeiting of the coin of the court.

Second. THE LANGUAGE OF THE PREAMBLE. ‘The language of the Preamble to the Fundamental Orders is in harmony with this view, as follows (we use modern spelling.)

“We, the inhabitants and residents of Windsor, Hartford and Wethersfield do, for ourselves, and our successors, and such as shall be adjoined to us at any time hereafter, enter into Combination and Confederation together in our civil affairs to be guided and governed according to such Laws, Rules, Orders and Decrees as shall be made, ordered and decreed, as followeth.” Then follow the eleven “Orders.”

It is evident that the words “Inhabitants and Residents” are not to be taken literally, as descriptive of those who adopted the “Orders,” as voters, for it is a matter of history that only freemen were voters at that time, while “Residents” includes women and children. These words are not then to be interpreted literally. What is a fair construction of this language? If the “Orders “were adopted by the court, then the interpretation is plain. All the members of the Court— Magistrates and Committees— were “In-. habitants and Residents” of the three towns. They could with propriety say, “We, do for ourselves and our successors, enter into Combination and Confederation." They spoke of themselves as representatives of the three towns in General Court assembled, and their “successors “ in that official body. The term “successors”is a legal term, with a well defined meaning, and as here used refers to suc ceeding members of the court. It is inapplicable to a mass meeting, which can have no legal “successors.” The words, “and such as shall be adjoined to us at any time hereafter,” properly refer to members of the court that might thereafter be added to that body by the addition of new towns to the three named. This view is re-enforced by the words, “Enter into Combination and Confederation together,” which would be very naturally used if the representatives of separate towns were here speaking, and were intending to “Combine and Confederate” these separate, independent towns into “one public State or Commonwealth.” These three separate towns were certainly at that date exercising separate and independent powers. The Massachusetts Commission had expired. Nothing had taken its place. They were under no bond or league or charter. Agawam had sent its magistrates and committees to the general court occasionally, during the two years since the expiration of the commission, but it was under no legal obligation to do so. In the exercise of its undisputed independency it had recently withdrawn from the loose concert of action that had previously existed. The object of the present “Confederation” was to prevent such secession in the future, and to establish a government by general courts. “In which said General Courts shall consist the Supreme Power of the Commonwealth,” as provided in the tenth order. A commonwealth consists of people and territory. The territorial bounds of the three towns had been established at the last court held under the Massachusetts Commission, on Feb. 21, 1636—7.

These towns as separate municipalities, embracing each a separate territory, a separate civil and religious organization, entered into “Combination and Confederation together,” to be governed by the “laws, rules, orders and decrees” which were then “ made, ordered and decreed” by the General Court, in the eleven orders which followed this preamble. A representative body, like this General Court, may properly enact “laws, rules, orders and decrees,” but a mass meeting could not with propriety use such language as descriptive of its votes. Such enactments can only be passed by a deliberative body. They require more time, discussion and deliberation than could be given in a “mass meeting.” The same mint mark characterizes the preamble as the eleven orders.

Third. THE RECORD OF THEIR ADOPTION. if the Fundamental Orders had been adopted by the people in “mass meeting,” it was such an unusual occurrence — such a progressive step towards freedom, so foreign to the sentiments of the time — that such action would most certainly have been noted in the records of the court, or mentioned in some contemporaneous letter, diary or sermon of that day. That herald of advanced thought, the Rev. Thomas Hooker, would have proclaimed it in clarion tones, but even he had not advanced to that point. On the contrary, what do we find? A short and simple court record, as follows:
“14th January, 1638, the i r orders abovesaid are voted.” This is the record of the court, made in the court’s record book, in the handwriting of Thomas Welles, the court’s clerk. It is a sufficient record of the action of the court, and cannot fairly be regarded as the record of the unprecedented action of a “mass meeting.”

Fourth. THESE ORDERS REVISED BY THE COURT. These orders were notrecorded at once. First, they did not cover the whole ground desired. The court record shows that at a session held Sept. 10, 1639, “Mr. Hopkins, Mr. Welles, Mr. Steele and Mr. Spencer were instructed to ripen some orders that were left unfinished by the former court, as about provision of settling lands, testaments of the deceased, and recording special passages of Providence.” These unfinished orders of the “former court” are undoubtedly the orders of Jan. 14th, preceding, because no other court had passed orders of such a permanent and fundamental character. (1 Col. Rec. 34.) Second, a general revision of these and all former orders was directed to be made. This is shown by an order of the court passed Oct. 10, 1639, as follows:

“It is ordered that Mr. Willis, Mr. Webster and Mr. Spencer shall review all former orders and laws, and record such of them as they conceive to be necessary for public concernment, and deliver them into the Secretary’s hands to be published to the several towns and all other orders that they see cause to omit to be suspended until the court takes further order.” (1 Col. Rec. 36.) Of course it was unnecessary to record orders that might be suspended. The secretary withheld the record for the report. The language, “all former orders and laws” clearly embraced the Fundamental Orders. These extracts show that the court itself regarded “all former orders and laws” in the same light, and as equally subject to revision, alteration and addition.

Fifth. THE ORDERS AMENDED BY THE COURT. The Fundamental Orders were amended by the court on its own authority. In a session of the court held held Nov. 10, 1643, it was provided that “Whereas, in the Fundamental Order it is said ‘that such who have taken the oath of fidelity and are admitted inhabitants’ shall be allowed as qualified for choosing of deputies. The court declares their judgment, that such only shall be counted admitted inhabitants, who are admitted by a general vote of the major part of the town that received them.” (1 Col. Rec. 96.) The Fundamental Order here referred to is the seventh. Further citation is unnecessary to prove that the court amended these orders, like all other orders passed by the court, with no thought, apparently, that the amended orders should be submitted to the people for their approval; and yet such conduct is unaccountable if they had thought it necessary to submit the original orders to their approval.

Sixth. THE MANUSCRIPT RECORDS. The manuscript records of the court confirm the foregoing views. The Fundamental Orders are recorded in the handwriting of Thomas Welles, who was secretary from April 9, 1641, to May 18, 1648.

All the records of the court held previous to that of Jan. 14, 1638-9 are recorded on the first ten pages of the manuscript volume. Then follows on the top of page eleven the first entry in the handwriting of Thomas Welles, as follows:

"Ja. 14t, 1638. It is ordered that the treasurer shall deliver no money out of his hands to any person without the hands of two magistrates if the sum be above zos., if it be under, then the treasurer is to accept of the hand of one; but if it be for the payment of some bills to be allowed, which are referred to some committees to consider of whether allowed or not, that such bills as they allow and set their hands unto, the treasurer shall accept and give satisfaction.” (1 Col. Rec. 26.) This is the record of an ordinary order passed by the court at that date. It follows other orders in regular sequence, without any blank space between this record and that at the bottom of the next preceding page. The balance of page eleven below, this record is left blank, as are also pages 12-21. This record shows that a session of the court was actually held on the day that the Fundamental Orders were passed. In the printed volume this record of the above vote is inserted after the Fundamental Orders for some unknown reason. This mjsplacement has probably led to some confusion of ideas upon this subject. The Fundamental Orders are recorded on pages 220-227 , as now paged, while the oaths are recorded on pages 215 and 216.

In the printed volume this order of arrangement is also reversed, although the original paging is noted. The manuscript volume is made up of at least three separate original manuscript records which were bound into one volume for their better preservation. The Fundamental Orders are recorded in the third record book, which seems to have been a statute book for ready reference, and shows much harder usage than other parts of the volume.

As Mr. Welles was chosen secretary on April 9, 1641, it is altogether probable that the committee of revision did not make their revision ready for record until after his election as secretary, otherwise it would have been the duty of his predecessor to have recorded them. If this be true the Fundamental Orders were in the hands of the committee some two years, and did not flash into the world quite “as a sunburst into the sky,” as has been stated by Mr. Robinson.

THE ORDERS WERE A “CONFEDERATION.”


First. So NAMED IN THE ORDERS. If the Fundamental Orders were a compact entered into and adopted by certain magistrates and committees acting as representatives of the three towns of Windsor, Hartford and Wethersfield, then it was a confederation, like that of the colonies after the Revolutionary War. The best evidence is the document itself. The fathers of this child so baptized it. It is expressly stated in the preamble of that instrument that its makers “enter into Combination and Confederation together.” What right has any one to contradict this record and say that it was not a “Confederation ?“ Those who framed and adopted this instrument knew the meaning of the word “Confederation.” In so defining the character of this document they acted advisedly and appropriately if they spoke for themselves as representatives of the three separate towns, and their successors in office. That they did so speak and intended to bind the three towns is evident from the eighth order, which expressly names the three towns and binds them in “Confederation,” as follows:

"Eight. It is ordered, sentenced and decreed that Windsor, Hartford and Wethersfield shall have power, each town, to send four of their freemen as deputies to every general court; and whatsoever other towns shall be hereafter added to this jurisdiction, they shall send so many deputies as the court shall judge meet, a reasonable proportion to the number of freemen that are in the said towns being, to be attended thereiii: which deputies shall have the power of the whole town to give their votes and allowance to all such laws and orders as may be for the public good, and unto which the said towns are to be bound.”

These towns had for two years been sending •deputies or committees to the general court, and this eighth order only perpetuated the former practice.

Second. ORIGIN ov REPRESENTATIVE GOVERNMENT. Representative government had its origin in this country in the Massachusetts Colony.

At a general court held in Boston on May 14, 1634, the following order was passed:

“That it shall be lawful for the freemen of every, plantation to choose two or three of each town before every general court; to confer of, and prepare, such public business as by them shall be thought fit to consider of at the next general court, and that such persons as shall be hereafter so deputed by the freemen of the several plantations, to deal in their behalf, in the public affairs of the commonwealth, shall have the full powers and voices of all the said freemen, derived to them for the making and establishing of laws, granting of lands, etc., to deal in all other affairs of the commonwealth wherein the freemen have to do, the matter of election of magistrates and other officers only excepted, wherein every freeman is to give his own voice.” (1 Mass. Col. Rec. 118.)

These provisions were substantially embodied in the Fundamental Orders. The learned Chief Justice Shaw of Massachusetts, in commenting upon this statute, in the case of Commonwealth vs. Roxbury. 9 Gray’s Rep. 480, says, “Here, then, was the origin of representative government.” He says further, in the same case, page 485, “The terms ‘plantation,’ ‘town’ and ‘township’ seem to be used almost indiscriminately to indicate a cluster or body of persons inhabitating near each other; and when they became designated by a name, certain powers were :onferred upon them by general orders and laws, such as to manage their own prudential concerns, to elect deputies and the like, which in effect made them municipal’ corporations: and no formal acts of incorporation were granted till long afterwards.” ,

It has been held by our courts that our fathers brought from England to this country the English common law with them, so far as it was adapted’ to their new surroundings, and not modified or repealed directly or indirectly. So when our fathers came from Massachusetts to Connecticut they came by permission of the general court of Massachusetts, and under a commission issued by that’ court on March 3, 1635—6, to eight persons to govern Connecticut for one year. This commission was the first organic law of Connecticut.

Third. THE MASSACHUSETTS COMMISSION. The three towns of Newtown, Dorchester and Watertown were municipal corporations in Massachusetts, according to the definition of Judge Shaw, because they had been there named and invested with corporate powers. When these towns migrated to Connecticut they were named as in the commission, granted for their government, and recognized as continuing towns here: They settled in three separate localities and carried on separate town governments, and exercised the corporate powers of municipal corporations, granted lands and laid out highways as they had done in Massachusetts, exercising acts of sovereignty of a high order. They din so because they had a right to do so under Massachusetts law and the commission. The three towns were mentioned by name in the preamble to the commission as already transplanted “into the River of Connecticut,”or as “shortly to go,” and the commissioners were given power, “under the greater part of their hands, at a day or days by them appointed, upon convenient notice, to convent the said inhabitants of the said towns to any convenient place that they shall think meet, in a legal and open manner, by way of court, to proceed in executing the power and authority aforesaid.”

It is to be noticed that” the inhabitants of the said towns” are to be convened in “a legal manner,” and they were to meet “by way of court.” The “legal manner” was pointed out in the order of May 14, 1634, already cited, which was by representatives, and no other “manner” was legal. And they were to convene “by way of court” and in no other way. This necessarily excluded mass meetings or any submission of measures to popular vote. In the case of the Fundamental Orders there is no record that the general court ever submitted them to popular vote, or thought of so doing, and how the people could vote on them without an official call to do so is not apparent. Certain official machinery has to be provided in all such cases, which is wholly absent here.

The first representative assembly in Connecticut was the general court held at Hartford, May 1, 1637, to which nine committees were chosen from the three towns, and the Pequot War was inaugurated. These committees were elected under the Massachusetts statute, above cited. There was no Connecticut statute which authorized their election. This proves that the inhabitants of these three towns considered that they could exercise all the powers granted to Massachusetts towns. They derived their town organizations from the Massachusetts commonwealth. When they came to Connecticut it was by permission of the Massachusetts court, and as town organizations, and these were recognized and continued as such in their new homes, in the Massachusetts commission; when the latter expired these town organizations did not die with the commission, but continued on in full life. They separately elected town officers, legislated upon local affairs, disposed of public lands and elected representatives to the General Court which declared war upon the Pequot Indians, which court finally exercised the grandest act of sovereignty of all in framing and adopting the Fundamental Orders of 1639, in which the towns gave up some of the powers they had before exercised, judge Butler in \Vebster vs. Harwinton, 32 Conn. 136, says that the free planters who came here “received from Massachusetts no corporate powers.” This was a fundamental error, as already shown. Again he says (p. 137) in speaking of the Constitution of 1639— ” That extraordinary instrument purports on its face to be the work of the people—the residents and inhabitants— the free planters themselves of the three towns.” That is also a mistake, as we have endeavored to show, is without historical support, and antagonized by the whole history of the times, and the instrument itself. It is said that he afterwards acknowledged these errors.

Fourth. THE FUNDAMENTAL ORDERS, AN EVOLUTION. Agawam (now Springfield) at first united with the three other towns by sending committees to the General Court, but afterwards withdrew from her concert of action, and maintained a separate and independent existence for some time after the confederation of the three towns was consummated. With the defection of Agawarn before their eyes, and with no common bond between the three towns, after the first year, the members of the General Court intended to provide, and did provide, that such a secession should not occur again, and therefore enacted the Fundamental Orders to “associate and conjoin” themselves “to be as one Public State or Commonwealth.” They had cut loose from old Massachusetts and now embodied in the “Orders” such laws of Massachusetts as they thought best, and such other measures as were adapted to their times and circumstances, and bound their respective towns by a firm “Cornbination and Confederation.” The three towns retained their corporate powers after the expiration of the Massachusetts commission as before. They continued the magistracy and the government “by way of court,” and this court assumed and exercised the same broad powers conferred by the commission. For two years after the commission expired the towns were free and independent municipal corporations, self-governing, except as they voluntarily submitted to the orders of the courts by them constituted. And because they were independent they could confer upon their representatives the power to form one independent “Confederation,” instead of three separate governments.

Fifth. THE ORDERS RECOGNIZED THE TOWNS. The prior existence of the three towns is abundantly recognized in the Fundamental Orders. Their previous sovereign right to ‘dispose of lands is admitted and confirmed in the tenth order, which authorized the General Courts thereafter, “to dispose of lands undisposed of, to several towns or persons.” This recognizes and confirms the actions of the towns in the previous disposing of lands within their own bounds. These lands the General Courts could not again “dispose of” or disturb. Their power was limited to dispose only of “lands undisposed of.” The disposition already made was recognized as legal, valid and binding. The first volume of Hartford town votes, recently published, proves that Hartford exercised this sovereign power of land disposal at the first recorded meeting held after the settlement in Connecticut. The other two towns did the same thing. They also exercised the power of eminent domain, in taking land for highways. (Canastota Knife Co. vs Newington Tramway Co., 69 Conn. Rep. 164.)

Sixth. THE LETTER OF REV. THOMAS HOOKER. In the letter of Rev. Thomas Hooker written in the autumn of 1638, and published in the Connecticut Historical Collection of the Historical Society, Vol. I, page 13, appears a passage which shows how the magistrates were elected from March 1636-7 to the adoption of the Fundamental Orders in January 1638-9. “For, at the time of our election, the committees from the town of Agawam came in with other towns and chose their magistrates, installed them into their government, took oath of them for the execution of justice according to God, and engaged themselves to submit to their government and the execution of justice by their means, and dispenced by the authority which they put upon them, by choice.”

Here is full evidence that the several towns chose their respective committees and the committees chose the magistrates, and inducted them into office. The people did not choose the magistrates. At a court held Feb. 9, 1637-8, which was the last court held during the first year after the Massachusetts commission expired, the following order was passed:

“It is ordered that the General Court now in being shall be dissolved, and there is no more attendance of the members thereof to be expected, except they be newly chosen in the next general court.” This was the Jast order passed at that session of the court.

The first court of the second year of this popular government was held March 8, 1637-8, 7-8, in which were eight magistrates and twelve committees chosen in the interval between Feb. 9th, and March 8, 163 7-8. This was the election referred to by Rev. Thomas Hooker in his letter above cited. Public sentiment had not then sufficiently advanced to entrust such election to the direct vote of the people.

Seventh. THOSE WHO ADOPTED THE ORDERS. - The second court of this second year, and the last court held prior to that of Jan. 14, 1638-9, (according to the record) when the Fundamental Orders were adopted, consisted also of eight magistrates and eleven committees, and was held April 5, 1638, As those who represented the three towns or Hartford, Windsor and Wethersfield in this general court, undoubtedly were the members of the court which adopted the constitution of 1639, so called, their names are worthy of being inscribed in letters of gold upon our Connecticut temple of fame. The members of this court represented the towns as follows

Of the magistrates, John Haynes and Thomas Welles were Of Hartford; Roger Ludlowe and William Phelps were of Windsor John Plum and Matthew Mitchell were of Wethersfield.

Of the committees, George Hull, Capt. John Mason, Thomas Ford, and Thomas Marshall were of Windsor; John Wt bster, John Talcott, John Steele and Edward Hopkins were of Hartford; Andrew Ward, Thurston Raynor and George Hubbard were of Wethersfield. To those eight magistrates and eleven committees, in all probability, must the honor be rendered of having originally framed and adopted the Fundamental Orders of Connecticut.

Each of these three towns was represented by two magistrates and four committees, except Wethersfleld which apparently sent but three committees.

The records of Connecticut do not show that any constitutional question was ever submitted to vote of the people till the constitution of 1818 was so submitted. Not even the so-called constitution of 1776 was referred to popular vote, but was passed by the legislature who spoke for “The People of this State,” as their predecessors, in adopting the constitution of 1639, spoke for “The Inhabitants and Residents of Windsor, Hartford and Wethersfield.”

To Part 2

Return to CT AHGP