The Development of Religious Liberty in Connecticut

by M. Louise Greene

The Anti-Federalists early began to probe for weak spots in the constitutional government of Connecticut. The Fundamental Orders had given four deputies to each of the three original towns, and had made the number of deputies from each new town proportionate to its population. The Charter had limited the deputies to two from each town. The Fundamental Orders gave the General Court, composed of Governor, Magistrates or Assistants, and Deputies, supreme governing power, including, together with that of legislation, the granting of levies, the admission of freemen, the disposal of public lands, and the organization of courts. It had also a general supervision over individuals, magistrates, and courts, with power to revise decisions and to mete out punishments. The Charter of 1662 did not materially alter the laws and customs of the government as previously established under the Fundamental Orders, or the "first written constitution." The Charter emphasized the executive, and began the segregation of the Upper House or Council, since by it the "Particular Court" of the founders became the Governor's Council, serving upon like occasions, but requiring the presence of at least six magistrates for the transaction of business. The Particular Court had consisted of the Governor or Deputy-Governor, and three Assistants. In emergencies occurring during adjournment of the General Court, the Particular Court was to serve in place of the larger body. After 1647 this special court could consist of two or three magistrates who, in the absence of the Governor or Deputy-Governor, chose one of their number to act as moderator. After 1662 the formula of the General Court "Be it ordered, enacted and decreed" was changed to "Be it enacted by the Governor and Council and House of Representatives in General Court assembled." At the regular session of the General Court or General Assembly, the Councilors first sat as a separate body in 1698. After the Declaration of Independence this Upper House or Council became the Senate, and for many years was referred to under any one of the three names.

The power of the General Court—this jumble of legislative, executive, and judicial—worked well so long as the community consisted of a few hundred or a few thousand souls with little diversity of sentiment or industrial interest. It was not until the last quarter of the eighteenth century that the inefficiency of the "first written constitution" began to be felt. Then there arose the need of a new constitution to modify the body of laws and customs that had grown up; to destroy much of the erroneous legislation that in effect perverted or nullified their original intent; and to furnish a constitutional basis for the government of a larger and less homogeneous people. Here and there a few thoughtful men, irrespective of their church or party, were beginning to apprehend the difficulty of piloting a democratic state under the old royal charter. The more prominent among them belonged to the Anti-Federal party, and naturally they sought to expose the constitutional difficulties which they believed impeded progress.

One of the earliest party tilts grew out of the increase of new towns and the unequal development of some of the older ones. Then as now, though on a much smaller scale, the unit of town representation threatened rotten boroughs and a fictitious representation of the will of the majority as represented by the delegates to the Lower House. The state in 1786 had not recovered from the exhaustion due to the Revolutionary War, and the support of the many new deputies, due to the increase of the towns, was a burden which the October legislation of that year attempted to lighten. With the object of cutting down state expenses a bill was introduced into the House to refer to the freemen some proposition for reducing the number of their delegates and for equalizing representation. Mr. James Davenport of Stamford moved to substitute for the bill [c] another in which this reduction should be made by the legislature without submitting the proposed change to the freemen. This was objected to on the ground that a reduction of delegates was a constitutional question, "the Assembly having no right to alter the representation without authority given by their constituents." The supporters of the bill contended with Mr. Davenport that—

we have no Constitution but the laws of the State. The Charter is not the Constitution. By the Revolution that was abrogated. A law of the State gave a subsequent sanction to that which was before of no force; if that law be valid, any alteration made by a later act will also be valid; if not, we have no Constitution, so defined, as to preclude the Legislature from exercising any power necessary for the good of the people.

The bill was carried over to the May session of 1787, when it was defeated by sixty-two yeas to seventy-five nays, the towns of Hartford, East Hartford, Berlin, Stamford and Woodbury favoring it. A confidential letter of February, 1787, from Dr. Gale, the probable author of "Brief, decent but free Remarks or Observations on Several Laws passed by the Honorable Legislature of the State of Connecticut since the year 1775, by a Friend to his Country," suggested that in addition to the reduction of representatives, laws should be passed forbidding any citizen to hold, at the same time, more than one place of public trust, either civil or military, and also requiring an increase in the number of councilors, or senators, from the total of twelve to three from each county. [d] Dr. Gale believed that if these senators should be elected by each county, and not upon a general ticket, the change would be beneficial. [195]

In regard to the senators, the Fundamental Orders prescribed that nominations for the magistrates should be made by the towns through their deputies to the fall session of the General Court, and that the election should take place the following spring at the Court of Elections. As the life of the colony expanded, modifications of this rule were made; in time, vote by proxy took the place of the freeman's presence at the Court of Election. After 1689, the Assistants to be nominated, twenty in number, were balloted for in the fall town meetings. The sealed lists were sent to the legislature, where they were opened, and the ticket for the spring election was made out from the twenty names receiving the largest vote. The Court could no longer as in earlier times add any new names. Hence, the custom grew up of listing nominations, not according to popularity, but first according to seniority in office, and then according to the number of votes received. These lists were published in the papers throughout the state. The candidates for election were presented at the April town meetings, where each name was read in order and voted upon. A much later enactment provided twelve ballots, and forbade any one to cast more than twelve, whether for or against a candidate or in blank. If a man held any one of his slips in reserve for a more satisfactory candidate, he had none for the teller, and thus the secrecy of the ballot was almost destroyed. New candidates or those not up for reelection, whose names appeared at the foot of the list, whatever the number of votes received, were sometimes kept waiting years for an election, until those above them had died in office or resigned. [e] For instance, Jonathan Ingersoll received 4600 votes in nomination in 1792, while the senior councilor, William Williams, had only 2000; yet Williams's name was preferred, and Ingersoll's had to wait over another year, when he was again nominated and elected, and held his seat from 1793 to 1798. An election was a wearisome affair, and many men would not stay until the voting upon the list was finished, preferring for various reasons to cast an early ballot. The natural tendency was to support the experienced and known, even if indifferently efficient councilor, rather than to vote for an untried and unfamiliar man whose name would come up later, or even for popular men who could not be proposed until far into the day. As a result the party in power felt assured of their continuance in office. Moreover, proxies for the election were returned in April, but the result was not announced until the legislature met in May, nor was there any supervision compelling an honest count. Thus it was easy to keep in office Federal candidates, and thus the Senate, or Council, came to reflect public opinion about twenty years behind the popular sentiment. Furthermore, the clergy of the Establishment would get together and talk matters over before the elections, and the parish minister would endeavor to direct his people's vote according to his opinion of what was best for the commonwealth. This ministerial influence was not shaken until about 1817.

There was still another grievance against the Council besides that just mentioned. It had come to be almost a Privy Council for advice and consultation. Furthermore it was, until 1807, the Supreme Court of the state to which lay appeals in all cases, civil or criminal, where errors of law had been committed in the trial courts. Its twelve members were mostly, if not all, lawyers, holding a tremendous power of patronage over the members of the Lower House, many of whom were also lawyers, eager for preferment; over the courts throughout the state, from which, since 1792, the old non-professional judges had been debarred, and also over the militia, whose officers, from the earliest times, had been appointed by the General Court. Further, the united action of the two houses was necessary to pass or to repeal a law, and thus much important legislation centred upon a majority of seven in the Council.

Furthermore, at the opening of the nineteenth century, the courts of law also were thought to need reorganizing. The judges were declared partisan, as they naturally would be under the conditions of their appointment. The Republicans could not meet the Federals upon an equal footing in the state tribunals. They were disparaged in their business relations, "were treated as a degraded party, and this treatment was extended to all the individuals of the party however worthy or respectable; in fact as the Saxons were treated by the Normans and the Irish by the English government." [196]

Because of these political conditions, early in statehood, there were three schools of politicians; namely, those who approved a constitutional convention, expressly called to frame a new constitution; those who wished such a convention merely to amend the existing charter-constitution; and those, until 1800, predominately in the majority, who were convinced that whether the state had a constitution or not was a most frivolous and baneful question, mooted only by "visionary theorists," or by those who were desirous of a change, no matter how disastrous it might be to good government. The conservative party held that, since the charter had been drawn according to the tenor of a draft submitted by Winthrop and outlining the government according to the Fundamental Orders, framed in 1639 by the "inhabitants and residents of Hartford, Windsor and Wethersfield," the charter was not a grant of privileges but an approval asked and obtained for a government already existing. Consequently, such government as had been exercised before and was continued under the charter was essentially a creation of the people. It therefore needed only the declarative act of the legislature to annul those clauses of the charter that bound the colony to the crown and to continue over into statehood the government of the colonial period. Further, granting that the separation from Great Britain annulled the constitution, the subsequent conduct of the people in assenting to, approving of, and acquiescing in such acts of the legislature, had established and rendered those acts valid and binding, and had given them all the force and authority of an express contract. [197] Such discussion of constitutional questions, confined at first to the few, spread among the many after Leland's attack upon the charter, and were debated with great earnestness. Leland's attack gained him, at the time, comparatively few adherents, but it brought the question of disestablishment fairly before the people, demonstrating to the discontented that there was very little hope for larger liberty, for greater justice, until the power of legislation, granted by the old charter, should be curtailed, and the bond between Church and State severed.

The growth in Connecticut of the Democratic-Republican party, outside its following among Methodists, Baptists and a few radical thinkers, was very slow. The Episcopalians were held in much higher esteem by the Federal members of the Establishment, or "Standing Order," as they were called, than were the other dissenters. Yet notwithstanding the wealth and conservatism of the sect, they were looked at askance when it came to giving them political office, for the old dislike to a Churchman still lingered in New England. Accordingly, they were somewhat dissatisfied at the treatment they received as political allies of the Standing Order, and, in order to quiet their incipient discontent, the government thought best to occasionally extend some small favor to them. So in 1799, the legislature granted them a charter for a fund for their bishop which they were trying to raise. About the same time, Yale first conferred upon an Episcopal clergyman the title of doctor of divinity. The transfer of the annual fast day to coincide with Good Friday was appreciated by the Churchmen. The change was first made in 1795, and came about through Governor Huntington's friendship for Bishop Seabury, and because of a desire to remove from the public mind a misapprehension, arising from the refusal of the Episcopal church in New London to comply with President Washington's proclamation for a national Thanksgiving. [f] From 1797 this change of fast-day became customary. It removed the long-standing complaint that Presbyterian days of fasting or rejoicing frequently occurred during Episcopal feasts or fasts. At an earlier period, the ignoring of such public proclamations was sometimes made the occasion for imposing fines for the benefit of the Establishment.