Donald J. Surprenant
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:
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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.
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2) no person could succeed himself as Governor.
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3) Governor had to belong to an approved Congregation and had to have experience as a magistrate.
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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.
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5) there were no religious requirements established for voting.
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6) the supremacy of the General Court over the individual towns was clearly enunciated.
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7) the court could be dissolved only at its own behest.
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8) the Governor and magistrates composed a court of justice.
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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:
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1) to make and repeal laws.
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2) to levy taxes.
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3) admit freemen.
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4) grant undisposed lands to towns or persons.
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5) call in to question any individual for misdemeanors.
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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:
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1) that the direction of the government should follow the perfect rule found in scripture.
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2) that the freemen assembled would:
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a choose public officials.
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b make or repeal laws.
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c divide land and inheritance.
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d do and follow other things contained in the scriptures.
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3) that freemen be bound in business as they are in scripture s.
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4) that the freeman freely come together to secure purity and peace of laws and God.
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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:
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1) both are written documents;
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2) the governing officials were chosen by the people and their powers were described;
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3) equality of representation amongst the states (in Connecticut towns)
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4) the establishment of the rule of law.
