The Development of Religious Liberty in Connecticut

by M. Louise Greene

Finally, there was a certain amount of political and social ostracism directed against Churchmen. A notable attempt to defraud the Episcopalians of a due share of the school money, derived from the sale of public lands and from the emission of public bills, was defeated in 1738 by a spirited protest, setting forth the illegality of the proceeding, the probable indignation of the King at such treatment of his good subjects and brethren in the faith, and by pointing to the fact, as recently shown by a test case in Massachusetts, that the Connecticut Establishment itself could not exist without the special consent of the King. [86] The petition was signed by six hundred and thirty-six male inhabitants of the colony. They asserted in their protest that they had a share in equity derived from the charter; that they bore their share of the expenses of the government; and that the teaching of the Church of England made just as good citizens as did that of the Presbyterian Church. The public lands, from the sale of which the school money was derived, were those along the Housatonic river. The money was appropriated according to a law enacted in 1732 which distributed it among the older towns as a reward for good schools. But, in 1738, the legislature passed a bill by which a majority vote of the town or parish could divert the money to the support of "the gospel ministry as by law in the colony established." Naturally this new law operated against all dissenters, who, equally anxious with the Congregationalists to have good schools, were an ignored minority whenever the latter chose to vote the money to the support of their church. As a result of this spirited protest of the Episcopalians, the enactment of 1738 was repealed two years later "because of misunderstanding." Notwithstanding such hardships as the Episcopalians suffered in Connecticut, their own writers declare that, at this period of colonial history, the Churchmen in Connecticut had less to complain of than their co-religionists in New York and in the southern colonies.

While the Episcopalians were agitating for a larger liberty than that granted by the Toleration Act, the other dissenters, Rogerines, Quakers, and Baptists, were not idle.

The efforts of the Rogerines were marked more by violence than by success. They had become less fanatic, and persecution had died away during the first ten years following the passage of the Toleration Act. All might have gone smoothly had they not suddenly stirred Governor Saltonstall to renewed dislike, the magistrates to fresh alarm, and the people to great contempt and indignation. This they accomplished by a sort of mortuary tribute to their leader, John Rogers, who died in 1721. This tribute took the form of renewed zeal, and was marked by a revival of some of their most obnoxious practices. The Rogerines determined to break up the observance of the Puritan Sabbath. Immediately, an "Act for the Better Detecting and more effectual Punishment of Prophaneness and Immorality" was passed. It was especially directed against the Rogerines. Its most striking characteristic was that it changed the policy of the government from the time-honored Anglo-Saxon theory that every man is innocent until proved guilty, to the doctrine that a man, accused, must be guilty until proved innocent. In so oft-recurring a charge as that of being absent from public worship, it became lawful to exact fines unless the accused could prove before a magistrate that he had been present. But this first act did not dampen sufficiently the renewed zeal of the Rogerines, and for two years there was a continuance of sharp legislation to reduce their disorderliness. They were fined five shillings for leaving their houses on Sunday unless to attend the orthodox worship, and twenty shillings for gathering in meeting-houses without the consent of the ministers. They were given a month, or less, in the house of correction, and at their own expense for board, for each offense of unruly or noisy behavior on Sunday near any meeting-house; for unlawful travel or behavior on that day; and for refusal to pay fines assessed for breaking any of the colony's ecclesiastical laws. These laws [87] were enforced one Sunday in 1725 against a company of Rogerines who were going quietly on their way through Norwich to attend services in Lebanon. The outburst of religious fervor spent itself in two or three years. Governor Talcott did not believe in strong repressive measures, and it was soon conceded that the ignoring of their eccentricities, if kept within reasonable bounds, was the most efficient way to discourage the Rogerines. Summarizing the influence of this sect, we find that they contributed nothing definite to the slow development of religious toleration in Connecticut. If anything, their fanaticism hindered its growth, and they gained little for themselves and nothing for the cause. As the years went on and their little sect were permitted to indulge their peculiar notions, and the props of the State were not weakened nor the purity of religion vitally assailed, the Rogerines contributed their mite towards convincing mankind, and the Connecticut people in particular, that brethren of different creeds and religious practices might live together in security and harmony without danger to the civil peace.

During the seventeen years that Governor Talcott held office, 1724-41, the life of the colony was marked by its notable expansion through the settlement of new towns, [f] and by the dexterity with which its foreign affairs—its relations to England and its boundary disputes with its neighbors—were conducted. The last dragged on for years, calling for several expensive commissions and causing much confusion. The Massachusetts line was determined in 1713; that of Rhode Island in 1728; and that of New York in 1735. Connecticut, in all these cases, had to be wary lest the attempts to settle these disputed claims should weary, antagonize, or anger the King.[88] Many of the old charges were renewed, and Connecticut was no longer regarded as a "dutiful" colony, but rather as one altogether too independent, from whom it might be wise to wrest her charter, subjecting her to a royal governor. As early as 1715, her colonial agent had been advised to procure a peaceable surrender of the charter. To this proposal, Governor Saltonstall had returned a courteous and dignified refusal. But the danger was always cropping up. Governor Talcott's English official correspondence is full of details concerning Connecticut's increasing anxiety concerning the attitude and the decisions of the home government; over the dangers consequent to her institutions or to her charter. It was repeatedly suggested that that charter should be surrendered, modified in favor of the King's supervision, or annulled. In the Governor's letters, one follows the intricacies of the boundary disputes, of the complicated Mohegan case, and sounds the dangers to the colony from the disposition and decisions of the Crown.[89]

One case in particular demands a passing consideration because of its far-reaching effects, and because it paralleled in time the legislation in the colony which broadened the Toleration Act. This was the famous case of John Winthrop against his brother-in-law, Thomas Lechmere, to recover real estate left by the elder Winthrop to his son and daughter. The suit brought up the whole question of land entail in Connecticut, and, with it, the possibility of an economic and social revolution in the colony which would have been the death-blow to its prosperity. Winthrop, by appealing the case to England, brought Connecticut into still greater disfavor, and risked the loss of the charter, together with many special privileges in religion and politics which the colony enjoyed through a liberal interpretation of that instrument. In the course of the suit, the constitutional relations of Crown and colony had to be threshed out.

John Winthrop's father died in 1717, when, according to Connecticut, but not English, law of primogeniture, Winthrop received as eldest son a double portion of his father's real estate, and his sister, Thomas Lechmere's wife, the rest. Winthrop's brother-in-law was not a man wholly to be trusted to deal justly with his wife's property; but this, in itself, was a very small factor in the suit. Winthrop was at variance with the Connecticut authorities, and was dissatisfied with his share both of his father's property and of his uncle's, whose heir he was. No matter how much his own personal interests might endanger the colony, Winthrop resolved to have all the property due him as eldest son and heir under English law. He appealed his case to England, taking it directly from the local probate court, and ignoring the Court of Assistants, where he might have obtained some redress. Moreover, to influence the decision in his favor he included in his list of grievances many of the old offenses charged against Connecticut. He did this, even while acknowledging that the colonial Intestate Act, framed in 1699,[90] was but the embodiment of custom that had existed from the beginning of the colony. While this case dragged on, it was again intimated to Connecticut that the surrender of her charter, or at least the substitution of an explanatory charter, might be an acceptable price for the royal confirmation of her Intestate Law. Finally, Winthrop went to England, and was given a private hearing, at which no representative of the colony was present. As a result of this hearing, an order in Council was issued February 15, 1728, annulling the Connecticut Intestate Act as contrary to the laws of England and as exceeding charter rights. Moreover, the colonial authorities were ordered to measure off the lands, claimed by Winthrop, and to restore them to him.

Of course, it would take some time to obey the order. Meanwhile, if this restitution were made, if the decision were submitted to, it would invalidate so many land titles as to threaten the very existence of Connecticut's economic structure. The colony sought the best legal talent obtainable. For seventeen years Connecticut continued this expensive lawsuit, urging always her willingness to comply in the case of Winthrop, if only the decision be made a special one and not a precedent,—if only an order in Council, or an act of Parliament, would reinstate the Connecticut Intestate Law. Her agents in England were instructed to demonstrate how well the colonial division of property had worked, and that under the English division, where all real estate went to the eldest son, if it were practiced in a new and heavily wooded country, whose chief wealth was agriculture, the rental of lands would yield income barely sufficient to pay taxes and repair fences, and there could be no dowry for the daughters. A still further result would be, that the younger sons would be driven into manufacturing or forced to emigrate. In each case the Crown would suffer, either by the loss of a colonial market for its manufactured products, or by an impoverished colony, incapable of making satisfactory returns to the royal treasury. [91] Moreover, in the case of emigration, when Connecticut, lacking men to plow her fields, could no longer produce the foodstuffs the surplus of which she sold to the "trading parts of Massachusetts and Rhode Island" to supply the fisheries, the Crown would feel still another baneful effect from its attempt to enforce the English law of entail. Again, there was another aspect from which to view the annulment of the Connecticut Intestate Law. Its annulment would render worthless many past and present land-titles. Creditors who had accepted land for debt would suffer. Titles to lands, held by towns, as well as individuals, would become subject to litigation; the whole colony would be plunged into lawsuits, and its economic framework would be rent in pieces. The Intestate Law was in accordance with custom throughout New England. When in 1737 a similar statute in Massachusetts was sustained by the King in Council in the appeal of Phillips vs. Savage, Connecticut, notwithstanding the renewed and repeated suggestions to give up her charter, took courage to continue the contest.

During these years the question of the constitutional relation of colony and Crown was frequently raised, and Connecticut was called upon to show that her laws were not contrary to the laws of England. She had to prove that they were not contrary to the common law of England; nor to the statute law, existing at the founding of the colony; nor to those acts of Parliament that had been expressly extended to the colony. This was the most commonly held of the three interpretations of "not contrary to the laws of England." The most restricted interpretation was that all colonial laws higher than by-laws, and "which even within that term touched upon matters already provided for by English common or statute law, were illegal" or "contrary." Under this interpretation, "the colonies were as towns upon the royal demesne." Connecticut herself held to a third construction, maintaining that, as her own charter nowhere stipulated that her administration should accord with the civil, common, or statute law of England, she, at least, among the colonies was free to frame her own laws according to her own needs and desires. Holding to this opinion, which had never been corrected by the Crown, Connecticut maintained that "contrary to the laws of England" was limited in its intent to contrary to those laws expressly designed by Parliament to extend to the plantations. Moreover, Connecticut insisted that the colonies were not to be compared to English towns, because, unlike the towns, they had no representation in Parliament. The Connecticut Intestate Act was opposed to the English law according to the first two interpretations, but not according to the third. Further, the Connecticut authorities felt that if the conditions which had given rise to the law were fully realized in England, the apparent insubordination of the colony would disappear in the light of the real equity of the colonial statute. In Governor Talcott's letter, dated November 3, 1729, under "The Case of Connecticut Stated," there is a summary of the reasons why the colony hesitated to appeal directly to Parliament for a confirmation of the Intestate Act. She was afraid of exciting still greater disfavor by seeming to ask privileges in addition to those already conferred upon her in her very liberal charter. She was afraid of courting inquiry in regard to her ecclesiastical laws, her laws relating to the collegiate school, and also sundry civil laws. The colony feared that the result of such an investigation would be that she would thereafter be rated, not as a government or province, but as a corporation with a charter permitting only the enactment of by-laws. Moreover, she dreaded to be ranked with "rebellious Massachusetts," and thus further expose herself to a probable loss of her charter.

After contesting the decision against her for many years, at last in 1746 she virtually won her case through a decision given in England in the suit of Clarke vs. Tousey,[92]—a suit which had been appealed from the colony, and which presented much the same claim as Winthrop's. The decision in favor of Clarke was equivalent to a recognition of Connecticut's Intestacy Law. It has been pointed out that, important as the Winthrop controversy was from the economic standpoint, it was equally important as fore-shadowing the legislation of the English government some thirty years later, and as defining the relation of colony and Crown. Moreover, in 1765, as in 1730, "economic causes and conditions," writes Professor Andrews in his discussion of the Connecticut Intestacy Law, "drove the colonists into opposition to England quite as much as did theories of political independence, or of so-called self-evident rights of man."

It was during the continuance of this troublesome Winthrop suit, while boundary lines were still unsettled, while as yet the Mohegan titles remained in dispute, while the most grievous charge of encouraging home manufactures, and many other complaints were brought against Connecticut,—it was in the midst of her perplexities and conflicting interests that the dissenters within her borders sought greater religious liberty. They sought it, not only through their own local efforts, but through the strength of their friends in England, who brought all their influence to bear upon the home government. With such help Episcopalians had won exemption in 1727, and within two years Quakers and Baptists were accorded similar freedom.