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Connecticut Constitutionalism, 1639-1789

by
Donald J. Surprenant


Contents of Curriculum Unit 80.ch.02:


No good understanding of American government today is possible without a knowledge of its colonial roots. A most significant contribution to U. S. constitutional history was made by Connecticut, 1639-1789. In the study of American history, teachers often present a quick overview of the colonial period. This hasty treatment of the colonies may be due to a lack of time, or insufficient preparation in that particular area of study, or a number of other factors. I have attempted, in my unit on “Connecticut Constitutionalism, 16391789,” to take one specific colony, Connecticut, and trace its judicial origins and organization through its formative period to 1789.

What is now Connecticut was organized into two distinct colonies from 1634-1662, and neither colony had a charter from Great Britain. As people settled these two colonies, they saw the need to establish a civil body politics. The River Colony, consisting of Windsor, Wethersfield, and Hartford, adopted the Fundamental Orders, while the New Haven colony, including New Haven, Branford, Milford, Stamford, and Southhold, Long Island, drew up a set of Fundamental Laws. Examination of these documents should shed some light upon the type of governments established by the early colonists.

This unit discusses: the Fundamental Orders and the Fundamental Laws; the Great Charter of 1662, which gave Connecticut legal basis for its existence; the attempted withdrawal upon the formation of the Dominion of New England; the struggles Connecticut experienced in establishing its borders; and the great part Connecticut played in the Continental Congress and the Constitutional Convention. Connecticut had a full and rich history that allows teachers the opportunity to develop the concept of “constitutionalism” in the broader view of the development of the United States Constitution.

This unit was developed for use in a tenth or eleventh grade United States History Course. I am sure that at least some parts are applicable to many other Bade levels. The unit was designed to be integrated as a segment of the regular United States history course. If used in its entirety, this unit should comprise four weeks of class research, study, and discussion.

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Connecticut Constitutionalism 1639-1789 Settlement

As I began studying colonial Connecticut, I was struck with two questions: Why did the early Puritans come to Connecticut to settle and live? How did those early Puritans evolve a civil form of government? In my attempt to answer these two questions, I have come upon many other intriguing questions and characters in Connecticut history.

It was September of 1633 when the Reverend Mr. Thomas Hooker arrived in the colony of Massachusetts. He belonged to the Puritan faction of the Anglican Church. His reputation as a preacher must have preceded him to the New World, for he had a ready-made congregation waiting for him in Newtown, Massachusetts, and was immediately installed as the pastor. By 1634, Hooker’s congregation had petitioned the Massachusetts General Court for more land or for permission to emigrate. Three reasons are given for requesting this petition:

1) inadequate land for cattle, maintenance of ministers, and new settlers;

2) abundant fertile land in Connecticut and Dutch designs on the same;

3) “the strong bent of their spirit to move thither.”1

However, some historians claim that the real reason for the petition may have been Hooker’s rising conflict with John Cotton, who seems to have pre-empted the role of Massachusetts’ chief clergyman.

At about this same time, 1633, the Holmes party, a part of the Plymouth Colony, set up a fort north of Hartford, in what is now present day Windsor. Also, Jacob Van Curler, a Dutch explorer and trader bought land from the Pequot Indians, and set up a post in what is now Hartford. Simultaneously, John Oldham, leader of a group of families from Watertown, Massachusetts settled in what is now Wethersfield. Saybrook, a fort at the mouth of the Connecticut River, was established by John Winthrop, Jr., son of the Governor of Massachusetts, li 1635. This fort served as a defense post, with Winthrop as Governor.

Whatever the real reason for his leaving, in October of 1635, we find Thomas Hooker with sixty men, women and children settled in a place along the Connecticut River known as Suckiaug. During the spring and summer of 1636, more people left the Massachusetts Hay Colony and settled along the Connecticut River forming the three towns of Hartford, Windsor, and Wethersfield. Also, Hooker, as part of an understanding with Governor Winthrop of Massachusetts, and Governor John Winthrop, Jr. of Saybrook, received legal clearance from the Massachusetts Bay Colony to settle.

Both Hooker and Winthrop, Jr., approached the Massachusetts General Court in 1636, for a specific enactment. There followed the issuance of a commission authorizing eight men to govern, establish courts, wage war, and convene the inhabitants into a General Court such as at Massachusetts. Although the rule that forbade an incorporated entity like Massachusetts from issuing charters left the new settlement under a legal cloud, the Connecticut settlers knew that they had the strongest sanction they were likely to get. Earlier in 1633, delegates from the Massachusetts Bay, Plymouth, the River, and New Haven colonies adopted articles creating the New England Confederation. It provided for both a defensive and offensive alliance aimed at preserving the safety and liberty of the member colonies.

About the same time, 1636-1638, we find the Rev. Mr. John Davenport and Mr. Theophilus Eaton, together with a group of settlers having left England to establish a new colony. Some members of the group stopped briefly in Massachusetts then proceeded south and purchased a tract of land from the Momauguin Indians. This parcel of land stretched from the present day Guilford, west along the shore to Stratford and north to what is present day Wallingford.

Soon after the River Colony obtained its shaky legal status, trouble began. The beginning of the Pequot War goes back to conflict between the Pequots and the Dutch prior to 1635. This problem had been resolved and the Pequots remained friendly with the white settlers. In 1636, John Oldham was killed by the Block Island Indians, who had been given refuge by the Pequots. On May 1, 1637, the General Court was convened in Hartford and war was declared against the Pequots. A ninety man militia was summoned, forty-two from Hartford, thirty from Windsor and eighteen from Wethersfield, with John Mason as their Commander, Mason received help from Uncas, a dissident Pequot Sachem, who had hoped to regain control of them. The militia asked Rev. Stone, chaplain, to pray for Divine guidance. The Mason group then joined forces with Miantonomo, chief of the Narragansett Indians against the Pequots. Mason’s group interpreted their victory over the Pequots as a sign of God’s will. This war brought the three towns together in an effort of common defense. This, in turn led the towns to see the need for a common governmental structure.

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Fundamental Orders Constitutionalism?

The colonists’ idea of Constitutionalism included the notion of the social contract, certain inalienable natural rights, and government by the consent of the governed. The Fundamental Orders, adopted in January 1639, by the River Towns, were based upon this idea. (See Appendix A). They were most probably written by Roger Ludlow, the only lawyer living in Connecticut. They appear to have established a political entity based upon a divine covenant. The Fundamental Orders provided for:

1) the convening of a General Court in April and September. The April session was to elect the Governor and six magistrates. The September session to ratify laws.
2) no person could succeed himself as Governor.
3) Governor had to belong to an approved Congregation and had to have experience as a magistrate.
4) Each of the three River towns was to elect four deputies; with future towns to be entitled to whatever number the court thought fit.
5) there were no religious requirements established for voting.
6) the supremacy of the General Court over the individual towns was clearly enunciated.
7) the court could be dissolved only at its own behest.
8) the Governor and magistrates composed a court of justice.
9) freemen could convene a meeting of the General Court on their own initiative if the Governor and magistrates failed to do so at the prescribed times.
Some powers of the General Court were:

1) to make and repeal laws.
2) to levy taxes.
3) admit freemen.
4) grant undisposed lands to towns or persons.
5) call in to question any individual for misdemeanors.
6) deal with any other matter that concerned the good of this commonwealth.
The Fundamental Orders constitute only a brief outline of government. They fail to provide for a division of executive, legislative, judicial and administrative authority, separation of powers not then forming part of any political theory!

Let us take a moment to compare the Fundamental Laws, adopted by the New Haven Colony with the Fundamental Orders. (See Appendix C) The Fundamental Laws provided for:

1) that the direction of the government should follow the perfect rule found in scripture.
2) that the freemen assembled would:
a choose public officials.
b make or repeal laws.
c divide land and inheritance.
d do and follow other things contained in the scriptures.
3) that freemen be bound in business as they are in scripture s.
4) that the freeman freely come together to secure purity and peace of laws and God.
5) that the magistrates be chosen from among the Church members.
As we can see the civil government of New Haven was bound in Scripture and under the influence of the local Pastor, Rev. John Davenport. The Fundamental Laws were a body politics among God fearing Church members. Church members were few because to be admitted to the Church one had to have had a godly experience which had to be certified by the elders.

By the early 1640’s, both colonies had a written document that established some form of a civil government. The Fundamental Orders are referred to as the World’s first written Constitution. This may be challenged most simply by asking is it organic that is, did it actually describe the organs of government? A study of the document itself should permit an informed class discussion of the question.

The year 1639 found George Fenwick in charge of the Saybrook colony. Between 1639 and 1644, he met with Roger Ludlow, Thomas Hooker, and Thomas Wells concerning a proposed incorporation of Saybrook and the River Colony. In April 1644, Fenwick was elected Connecticut magistrate from Saybrook, as Saybrook was united with the River Colony.

By 1660, Governor Winthrop and the River Colony saw the need for a Royal Charter. Because of boundary questions and other uncertainties, there appeared a growing need for legal status for the colony. Governor Leete of the New Haven Colony met with Governor Winthrop. Leete wanted to establish some sort of federal union with Winthrop without losing a separate existence for the Mew Haven colony. Nothing came of this meeting. Winthrop was asked to journey to England to seek a Royal Charter for the Colony.. In June or 1661, Davenport wrote to Winthrop asking him to delay his journey to England for one year. Winthrop, in turn, left Hartford without answering Davenport. Winthrop presented his first petition to the Court of Charles II in September of 1661, with the final approval not attained until May, 1662.

The Royal Charter of 1662 (See Appendix D), was most generous. It gave Connecticut not only a free and clear legal title, but an amazing amount of self-government. The Charter allowed freemen to incorporate into towns. It called for a governor, deputy governor, and twelve assistants to be annually elected, this upper house to meet twice yearly. It allowed for a lower house of two members per town to conduct colonial business as a General Court. It granted freemen all the liberties and immunities of natural born English men, but they must take an oath of crown supremacy. It established a court with full judicial powers, allowed the legislature to enact laws, and granted the freest type of land tenure. In return, the Crown was to receive one-fifth of all the gold and silver mined in Connecticut. As it turned out, there was neither gold nor silver in Connecticut.

This Charter also established the following boundaries: Narragansett Bay on the East, Massachusetts on the North, Long Island Sound and the Atlantic Ocean on the South, and the Pacific Ocean on the West. The major problem introduced by the new Charter was the inclusion of the entire colony of New Haven with Connecticut. Connecticut colony attempted Tom 1662-1665 to negotiate with the New Haven colony concerning its inclusion into Connecticut. Finally, in 1664, Guilford, Branford, Milford, Stamford and Southhold, voted to join Connecticut. New Haven stood alone. Conditions were now disintegrating in New Haven, especially after the Dutch surrender of New Amsterdam to the English. Faced with the choice of rule by either Governor Winthrop of Connecticut or James Stuart, the Duke of York, New Haven submitted to Connecticut on January 5, 1665. The Connecticut Colony was now finally unified.

In obtaining the Royal Charter of 1662, Winthrop attempted to establish fixed boundaries for Connecticut. Historically, we see, this did not happen.

In June of 1686, King James II gave Governor Andros of New York a commission over the new Dominion of New England. Governor Andros was supposed to collect the Royal Charters of Connecticut, Massachusetts, Rhode Island and New Hampshire. In October of 1687, Governor Andros confronted Governor Treat of Connecticut and demanded the Charter. Governor Treat graciously welcomed Andros. Debate over the Charter continued all day. Suddenly, at nightfall, the candles went out. The Charter had disappeared from the table, supposedly spirited away and hidden in the hollow of a giant oak tree by a Captain Wadsworth of Hartford. Andros never did receive the Connecticut Charter. With the downfall of King James II in the Glorious Revolution, 1688-1689, so too went the ways of Governor Andros. On May 9, 1689, the Connecticut General Court reestablished the government under the Charter of 1662, and Governor Treat assumed his rightful place.

The period from 1690 through 1763 was marked by a succession of wars, several of which included the security of the colonies from the French and the Indians. From 1763 through the American Revolution, England passed laws antagonistic to the colonies. In particular, laws such as the Navigation Acts, Sugar, Stamp and Townshend Acts were aimed at raising revenue to help defray cost of England’s wars. The Writs of Assistance and Quartering Acts seemed to be aimed at preventing colonial sedition. The colonists came into direct conflict with England by violating British laws, protesting, boycotting, and in general just defiance of all British laws. The colonists even organized the Stamp Act Congress to formulate a unified plan of action. Connecticut, being a more commercial state, involved in shipping, felt the effects of these British laws more so than perhaps most other states. For the story of Connecticut’s role in the anti-imperial struggle of 1763-1776, see Unit IV in this volume.

By 1774, Connecticut wal willing to send delegates’ to Philadelphia to discuss growing conflict with England. Soon, both separation and reunification in America became central considerations. The Articles of Confederation brought the thirteen colonies into a loosely knit organization. The Articles of Confederation were designed to create not a strong central government, but an assembly of equal states, each of which retained its “sovereignty, power, jurisdiction, and right.” The Articles delegated to Congress the power to declare war, make peace, conclude treaties, raise and maintain armies, maintain a navy, establish a postal system, regulate Indian affairs, borrow money, issue bills of credit, and regulate the value of coin of the United States and the several states. The Articles provided for no standing agencies of enforcement: Congress could pass laws but there was no formal executive or judicial branch to execute and adjudicate them. In the debate over the Articles, three apparent problems arose: the basis for voting in Congress; the basis for “assessing contributions” to the general treasury; and the problem of western lands. Connecticut approached each problem with some trepidation. With regard to the problem of voting, three separate suggestions were made: that states’ votes be proportional to population; that all states be given one vote; that votes be based upon size of the contribution to the Continental Treasury. In the final document, each state was given one vote.

Taxation, too, posed a serious problem. What basis was to be used, since Congress, under the Articles had no power to tax, the central treasury and had only those funds which the states were willing to supply. A final version was adopted that called for levies based upon population with Negro slaves being counted as three-fifths. (The Articles came into effect on March 1, 1781, at twelve noon.) The problem of western lands was not finally resolved until the Connecticut session of 1786.

Connecticut, at this tine, like most states, feared a strong central government. Some of this fear was born out of suspicion of the other states and some of it out of a distrust and hatred of the old English system. The Constitutional Convention, 1787, grew out of mounting dissatisfaction with the Articles of Confederation. It was not a very representative group: small farmers, city workers, frontiersmen, and much of the radical Revolutionary leadership were not represented. The meetings were all held in secret. It became evident that the delegates wanted a relatively strong central government with a visible executive and an independent judiciary and legislature. The central government was to have power to levy taxes, control interstate and foreign commerce, raise an army, protect property, have sole power to coin money, and exercise its power directly on the people. That, coupled with the Connecticut Compromise of 1787, tended to allay some of the fears. In particular, our own Roger Sherman proposed that in a two house legislature, there be a House of Representatives based upon population and a Senate based upon one vote from each state or equal representation. The United States Constitution, with its Bill of Rights, separation of powers, and enumerated delegations of power to the central government, it was hoped, would attract the support of the states. Connecticut ratified the document with intense opposition from only a small minority of citizens.

Despite ever increasing problems of suffrage, taxation, religious liberty, etc., would wait another thirty years before adopting her own Constitution, relying on her Charter of 1662 until 1818.

The United States Constitution and the Fundamental Orders have the following in common:

1) both are written documents;
2) the governing officials were chosen by the people and their powers were described;
3) equality of representation amongst the states (in Connecticut towns)
4) the establishment of the rule of law.

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Presentation of Unit

It would be advisable to present this unit over a four or five week period. This particular unit can best be presented by dividing it into smaller or mini units. The first mini-unit, of one or two weeks, might deal with settlement. The second mini-unit would discus constitutionalism, which should take a two or three week period of time. One week at the end of the unit should be set aside for discussion of any research and papers the students might have done on their own. Testing should be done at the end of each mini-unit with a major test at the end of the entire unit. Testing at the end of each unit will evaluate the students’ progress and serve to evaluate the teacher’s effectiveness in presenting the material.

The following lesson plans are intended only as a suggested starting point for the teacher. They may be used or adjusted in any way to suit the class and the teacher.

Lesson I

Performance Objectives: At the conclusion of this lesson the children should be able to:

1. identify Thomas Hooker and what he did.

2. identify the three reasons for leaving the Bay Colony.

3. identify the Holmes Company and their part in early settlements.

4. identify John Oldham and his settlement.

Procedures:

Students would be introduced to the geography of Connecticut through the use of maps, overhead projector and ditto maps that the students can complete themselves. The students would be encouraged to discover: what attracted settlers to Connecticut in the first place?; what was the importance of the rivers to these early settlers?; are there parallels in the early settlement of Connecticut to that of the Massachusetts Bay Colony?

Lesson II

Performance Objectives: At the conclusion of this lesson the children should be able to:

1. identify the significance of the Warwick Patent.

2. identify early conflict between Saybrook and the River Colony.

3. identify the importance of the Pequot Indians.

Procedures:

Students would be introduced to the Warwick Patent via overhead projector. Students would be encouraged to identify the major component parts of the document. Then proceed to trace the Pequot Indians and their quest to drive the whiteman from Connecticut. Identify major battle areas.

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APPENDIX A—The Fundamental Orders of Connecticut—1639

(Transliteration from the original by Albert Carlos Bates)

(figure available in print form)

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APPENDIX B—The Fundamental Orders of Connecticut Modernized

By-the Grace of Almighty God, we the people of the towns of Windsor, Hartford and Wethersfield, are living upon the banks of the Connecticut River and the adjoining lands. Wishing to maintain peace and unity, we come together to establish a government. We will call ourselves a Public state or Commonwealth. We promise to preserve and protect the liberty and purity of the gospel of Jesus Christ, and to maintain the discipline of our established Churches.

For our civil laws we shall be governed by the following:

 1) It is ordained that we the people will hold two courts or assemblies yearly. The first will convene on the second Thursday of April and the second Thursday in September for the purpose of choosing magistrates, other public officials and a governor. There are to be chosen six judges to administer the laws. These people are to be chosen by a major part of the freemen who have sworn allegiance to this colony.
 2) It is ordained that the election be done by secret written ballot. That the freemen will choose from those listed. The Magistrates will be those who have received the most votes. They in turn, will choose one from their own (seven magistrates) to be the Governor for the year.
 3) It is ordered that no one may be elected or chosen a Magistrate if he has not served in the General Court. The towns may nominate two people who meet the pre-requisite to represent them (in the towns).
 4) It is ordered that the Governor:
a. be a member of an approved congregation.
b. be chosen no more than once every two years.
c. be a former magistrate.
d. be not allowed to take office until duly sworn in.
 5) It is ordered that after the election the deputies, Magistrates, Governor and other public officials will conduct themselves in a public manner befitting their position.
 6) It is ordered that the Governor shall send out a notice one month before the convening of each General Court. A special session may be called on fourteen days notice, and upon shorter tine if necessary. If the Governor fails to call into session the General Court, then the Magistrates can. If the Magistrates fail to call into session the General Court, then the freemen can by agreement or a majority of them. The deputies would then choose a moderator from among themselves.
 7) It is ordered that notice of call for the General Court shall be posted by the Constables in a public place. The town’s freemen assemble to choose deputies who will represent them and that each deputy will be duly sworn in. Each town may choose three or four deputies, and these will be chosen by written ballot.
 8) It is ordered that the towns of Windsor, Hartford, and Wethersfield may send fewer deputies. It is also ordered that new towns coming into the Commonwealth would be allowed deputies dependent upon the number of freemen residing in the town. These new towns would be bound to the laws enacted.
 9) It is ordered that the deputies will have the power and liberty to:
a) appoint the place of meetings.
b) deal with the things that concern the good of the public.
c) examine their own election
d) may throw out deputies not duly elected.
e) may fine any intruding party.
f) call for new elections.
g) deputies can levy fines for infractions of the laws, these fines are to be turned over to the Treasurer of the General Court.
10) It is ordered that the General Court, if called by the freemen will consist of the Governor, or moderator four magistrates, and a majority of the deputies. It will then be the supreme power of the Commonwealth. It will make laws, repeal laws, grant levies, admit freemen, dispose of lands previously undisposed of. It will be able to call public officials in on misdemeanors, and can throw them out of office. The moderator will grant liberty of speech and silence disorderly speaking. He will put all things to a vote and vote himself only if there is a tie.
11) It is ordered that the committee be chosen to decide how much money should be collected from each town.

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APPENDIX C—THE FUNDAMENTAL LAWS OF NEW HAVEN

(Figure available in print form)

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APPENDIX D—THE ROYAL CHARTER OF 1662

(Figure available in print form)

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Bibliography

Abranowitz, Jack. American History Study Lesson. No. 1 and 2. Chicago: Follett Publishing Co., 1945. This series includes text readings with worksheets with the main emphasis placed upon the United States Constitution.

Bates, Albert C. The Charter of Connecticut 1662. New Haven. Yale University Press. 1933. This book is one of a series published for the Tercentenary Commission of the State of Connecticut.

Brant, Irving. The Nationalist, James Madison. Vols. 1, 2, and 3. New York: The Bobbs-Merill Company, 1948. The series is excellent for catching a glimpse of Madison the man, and his influence upon the United States Constitution.

Butz, Otto. Of Man and Politics. New York: Holt, Rinehart and Winston. 1960. A good work to give the individual a background in what is Constitutionalism.

Collier, Christopher. Connecticut in the Continental Congress. Chester, Conn. Pequot Press. 1973. A fascinating, easily read book, which gives rich insights into the parts played by Connecticut in the Continental Congress.

Collier, Christopher. Roger Sherman: Puritan Politician. New Haven. Colony Historical Society. 1976. Written for the person who is looking for an account of one of Connecticut’s great political characters. The book is well written and easily read.

Collier, Christopher. Roger Sherman’ s Connecticut. Middletown, Connecticut. Wesleyan University Press. 1971.

Dutcher, George M. et al. The Fundamental Orders of Connecticut. New Haven: Yale University Press. 1933. This book is one of a series published for the Tercentenary Commission of the State of Connecticut.

Gordon, Irving L. American Studies: A Conceptual Approach. New York: Amsco School Publications Inc., 1977. This is an excellent textbook for the teacher to use. It gives a topical approach to the materials which saves tine from looking through a whole chapter.

Hacker, Andrew. The Federalist Papers. New York: Washington Square Press. 1964. Readings from men attending the Continental Congress and the Constitutional Convention.

Jones, Mary Jeanne Anderson. Congregational Commonwealth Connecticut, 1636-1662. Middletown, Connecticut: Wesleyan University Press. 1968. This book is limited to the problems of the Puritans in Connecticut. It is good for a factual relatively indepth reading, but it is very dry reading. Not for someone looking for a quick overview of the period.

McDonald, Forrest. The Formation of the American Republic 1776-1796. Baltimore: Penguin Books. Inc., 1965. A relatively good book on the formation of the American Republic. I found it also on the dry side. Definitely not for someone looking for that quick overview.

McLaughlin, Andrew C. The Confederation and the Constitution. New York: Collier Books. 1967. This book I found better reading then McDonald’s. It covers the sane basic period of tine and does a good job of covering the materials.

Morgan, Edmonds. The Puritan Dilemma. Boston: Little, Brown and Co. 1958. I found this book applicable because it gave me some idea of what Hooker, Williams, et al. were leaving. A short book, relatively quick reading.

Purcell, Richard J. Connecticut in Transition, 1775-1818. Middletown, Connecticut: Wesleyan University Press. 1963. A fascinating book, easily read, humorous in spots. It is good reading and will give to the reader a change in historical writing.

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