CONSTITUTIONAL HISTORY OF CONNECTICUT
Part 2


BY ROGER WELLES.
Published in Connecticut Magazine
March 1899

The Massachusetts Commission for the government of the three towhs located on the Connecticut River was not to extend any longer time than one whole year from the date thereof.” It expired therefore March 3, 1736, 0. S. The General Court also provided that they might “recall the said presents if they see cause,” and if there should be “a mutual and settled government condescended unto, by and with the good liking and consent of the said noble personages or their agent, the inhabitants, and this commonwealth.” This shows that the Court only undertook the government of the new settlements for one year as a matter of necessity, and as a preparatory step to a “mutual and settled government” to be established.

THE POWERS OF THE TOWNS UNDER THE COMMISSION.

This commission was really the first organic law or constitution of Connecticut, and had a most important bearing in shaping its subsequent history. It was in effect a grant of a territorial government to the three towns located in fact outside Of Massachusetts. It was an enabling act, made necessary by the stress of circumstances, and acquiesced in by all Conceined Chief Justice Shaw in the Case Of Commonwealth v. Roxbury, 9 Gray's Reg. laid down the rule for construing such a grant, as follows :—“ In the construction of a grant, the court will take into consideration the circumstances attending the transaction, the situation of the parties, the state of the country, and of the thing granted, at the time, in order to ascertain the iotent of the parties.” So judged the intent of the grantors and grantees of this commission was evidently to extend Massachusetts law into the territory of Connecticut for one year. This is made more evident by the passage by the General Court, at the same session when the commission was issued, (March 3, 1635, 0. S.) of an act defining more fully than ever before the powers of towns under their governments as follows.

“Whereas particular towns have many things which concern only themselves and the ordering of their own affairs. and disposing of businesses in their own town, it is therefore ordered. That the freemen of every town, or the major part of them, shall only have power to dispose of their own lands, and woods, with all the privileges and appurtenances of the said towns, to grant lots, and make such orders as may concern the well ordering of their own towns, not repugnant to the laws and orders here established by the General Court, as also to lay mulcts and penalties for the breach of their orders, and to levy and distrain the same, not exceeding the sum of twenty shillings; also to choose their own particular officers as constables, suiveyors for the highways and the like; and because such business is like to ensue to the constables of several towns, by reason they are to make distresses, and gather fines, therefore that every town shall have two constables, where there is need, that so their office may not be a burthen unto them, and they may attend more carefully upon the discharge of their office, for which they shall be liable to give their accounts to this Court when they shall be called thereunto.”— 1 Mass. Col. Rec., 172.

This statute was a veritable bill of rights, and made each town a local republic or democracy, so far as its domestic affairs were concerned, with three separate departments of government. The town meeting was the legislative department, and all the freemen were legislators with equal rights. The town officers constituted the executive department, and every freeman was eligible to any office. The magistrates constituted the judicial department, and as the bible was the great statute book, and every freeman was taught from his youth up to read and reverence it as the embodiment of God’s. law, and to conform his life to its sacred precepts, he was well qualified by such training to discharge the judicial functions of that day, without a great deal of study of man-made law. As this statute was enacted at the same time that the commission was issued, the two may fairly be presumed to have had some connexion with each other. The commission provided for the colonial government of the distant towns, while the statute defined their corporate or municipal powers. The towns both of the mother colony and the daughter colony exercised all the powers conferred by the statute. No similar statute was enacted in Connecticut because it was unnecessary. Connecticut was only Massachu
setts “expanded” beyond its legal limits. The necessity of the case excused the revolutionary character of this “expansion” and its legal defects, and the government which was inaugurated had the consent of the governed (excepting the Pequot and some other Indians) and the Commonwealth of Connecticut, and the three towns therein started on a career of civil and religious liberty, which had before been unknown in the world’s history.

THE POWER OF THE TOWNS AFTER THE COMMISSION EXPIRED.

Only seven sessions of the General Court were held in Connecticut under the Commission. At the last session of the Court held before the year closed on Feb. 21, 1636, 0. S., the three towns were named Hartford,. Windsor and \Vethersfield, and their geographical boundaries were defined as if to send them full fledged into the world, prepared for independent existence. When the Commission expired the three towns were in a somewhat similar condition to that of the American colonies after the declaration of independence. Daniel Webster once said that—” The revolution of 1776 did not subvert government in all its forms. It did not subvert the local laws and local legislation.”— (Cited in North American Review, Nov. 1880, p. 386.)

So while the expiration of the commission had the effect of severing the political tie that bound Connecticut to Massachusetts, “it did not subvert the local laws and local legislation.” These continued as before, only the laws of Massachusetts were now the laws of Connecticut. The towns retained all their corporate powers, and by tacit consent the General Court continued to exercise its former powers.

In Penhollow v. Doane’s, Adm.,rs. 3. Dallas, Rep. 54, the Supreme Court of the United States, in speaking of the powers of Congress during the war of the Revolution, defined them as follows. (p. 8o.)

“The powers of Congress were revolutionary in their nature, arising out of events, adequate to every national emergency, and co-extensive with the object to be attained. Congress was the general, supreme, and controlling council of the nation, the center of force, and the sun of the p&itical system. To determine what their powers were, we must inquire what powers they exeicised.”

“In congress were vested, because by congress were exercised with the approbation of the people, the rights and powers of war and peace.”

“Before the articles of confederation were ratified or even formed, a league of some kind subsisted among the states; and whether that league originated in compact, or a sort of tacit consent, resulting from their situation, the exegencies of the times, and the nature of warfare, or from all combined, is ullerly immalerial.”

This reasoning applies with full force to the powers exercised by the General Court, and by the several towns, between March 3, 1636, 0. S., and Jan. 14, 1638,
0. S., being the interval between the expiration of the commission and the adoption of the Fundamental Orders.

Chancellor Kent in his Commentaries. Vol. 11. p. 275, says—” The establishment of towns with corporate powers, as local republics, was the original policy throughout New England, and it had a durable and benign effect upon the institutions, and moral and social character of the People.

M. De Tocqueville, in his De la Democratic en Amerique, torn. I. 64, 96, appears to have been very much struck with the institution of New England towns. He considered them as small independent republics, in all matters of local concern, and as forming the principle of the life of American liberty, existing at this day.”

During this two years interval above mentioned, Hartford, Windsor and Wethersfield, were “small independent republics,” and fully exercised their powers as such republics, in making war and peace through the General Court, in granting away the public lands, legislating upon their local affairs, electing officers, and performing all other acts of sovereignty which their uncontrolled will and pleasure dictated. They called no man master. No king is mentioned in their records.

THE RIGHT OF TOWN REPRESENTATION.

The three towns had sent deputies to the General Court during their two years existence as independent republics. When they framed the Fundamental Orders they carefully preserved, in the eighth order, the power of each town “to send four of their freemen as deputies to every General Court.” The eleventh order provided that when a tax levy was to be made, “that a committee be chosen to set out and appoint what shall be the proportion of every town to pay of the said levy, provided the committees be made up of an equal number out of each town.” Thus the equality of representation of the towns was particularly guarded.

The charter of 1662 secured a representation to the General Assembly, of deputies. “not exceeding two persons from each place, town or city.”

In the Constitution of 1818 it was provided that—” The number of representatives from each town shall be the same as at present practised and allowed. In case a new town shall hereafter be incorporated such new town shall be entitled to one representative only.” Thus the equality of representation of several towns has been maintained from 1636 to the present time. It was held sacred by King Charles in the charter of 1662, and remained “the same” in the Constitution of r8x8. It has worked well in practice, has resulted in injury to none, is dear to the people of the towns, and will never be willingly surrendered by them.

The argument against such representation is an argument against State representation in the United States senate. Does any son of Connecticut wish that body to represent, not states, but districts of equal population? If not, is the argument against town representation based upon principle or upon something else? Our state senate is the popular body in theory, and can easily be made so in practice. The fact that it has not been made so already is evidence that no great injustice has been felt by anybody.

THE DANGER OF CITY SUPREMACY.

The change of the present right of town representation, would be fraught with danger to the public welfare. The time is coming when the population of the cities will outnumber that of the country towns. If the right of representation should be so changed that the city representatives might outnumber the country representatives in the legislature, then the cities would dominate the state, and if the cities should be dominated by the saloon and the machine, then the state would also be under the dominion of the city saloons and bosses.

That these fears are not altogether visionary is proved by the influence exerted by New York City, Philadelphia, and Chicago. The former city almost dominated the state at the last election. Only the country vote saved the state from the rule of the Tammany boss. Rome dominated the Roman Empire. Paris rules France.

De Tocqueville, in his “Democracy in America,” p. 42, gives this warning, "I look upon the size of certain American cities, and especially upon the nature of their population, as a real danger which threatens the security of the democratic republics of the New World.” Wendell Phillips once said,—” The time will come when our cities will strain our institutions as slavery never did.” The city is “the grave of the physique of our race,” is the forcible language of another writer.

Says Rev. Josiah Strong in “The Twentieth Century City,” p. 108, “For years we have had in our larger cities, and in many of the smaller, not the government of the people, by the people, and for the people, but the government of the people, by the boss, and for the machine.” Let the state senate represent equal areas of population, but do not deprive the towns of their time-honored right of representation. so sacredly guarded since 1636.

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