THE CONSTITUTION STATE
That a colonizing people should, almost at the moment of their arrival in a new home, proceed to enact the fundamental law of a civil state is a remarkable fact in history. The manner in which this was done in Connecticut, and the character of the constitution there made in 1639, six years after the first English settlement, render it a memorable event in the development of American government.
As the Connecticut Constitution was not only the first instrument of its kind, but also formed, in many respects, a pattern for others which became the organic laws of American States, so the first union of colonies, in 1643, is important not alone as being the first, but also as foreshadowing the later confederation and the final union of the State themselves.
This model of an American union, following so closely upon the earliest creation of an American civil constitution, is concisely described by the great Chief Justice Marshall.
- - - - G.H. Hollister
We read, in treatises upon elementary law, of a time antecedent to all law, when men theoretically are said to have met together and surrendered a part of their rights for a more secure enjoyment of the remainder. Hence, we are told, human governments date their origin. This dream of the enthusiast as applied to ages past, in Connecticut for the first time and upon the American soil became a recorded verity.
Here at last we are permitted to look on and see the foundations of a political structure laid. We can count the workmen, and we have become familiar with the features of the masterbuilders. We see that they are most of them men of a new type. Bold men they are, who have cut loose from old associations, old prejudices, old forms; men who will take the opinions of no man unless he can back them up with strong reasons; clearsighted, sinewy men, in whom the intellect and the moral nature predominate over the more delicate traits that mark an advanced stage of social life. Such men as these will not, however, in their zeal to cast off old dominions, be solicitous to free themselves and their posterity from all restraint; for no people are less given up to the sway of unbridled passions. Indeed, they have made it a main part of their business in life to subdue their passions. Laws, therefore, they must and will have, and laws that, whatever else they lack, will not want the merit of being fresh and original.
As it has been, and still is, a much debated question, what kind of men they were - some having overpraised and others rashly blamed them - let us, without bigotry, try if we cannot look at them through a medium that shall render them to us in all their essential characteristics as they were. That medium is afforded us by the written constitution that they made of their own free will for their own government. This is said to give the best portrait of any people; though in a nation that has been long maturing, the compromise between the past and present, written upon almost every page of its history, cannot have failed in some degree to make the likeness dim. Yet, of such a people as we are describing, who may be said to have no past, who live not so much in the present as in the future, and who forge as with one stroke the constitution that is to be a basis of their laws - are we not provided with a mirror that reflects every lineament with the true disposition of light and shade? If it is a stern, it is yet a truthful, mirror. It flatters neither those who made it nor those blear-eyed maskers, who, forgetful of their own distorted visages, look in askance, and are able to see nothing to admire in the sober, bright-eyed faces of their fathers who gaze down upon them from the olden time.
The preamble of this constitution begins by reciting the fact that its authors are, "under Almighty God, inhabitants and residents of Windsor, Hartford, and Wethersfield, upon the river of Connecticut." It also states that, in consonance with the word of God, in order to maintain the peace and union of such a people, it is necessary that "there should be an orderly and decent government established," that shall "dispose of the affairs of the people at all seasons." "We do therefore," say they, "associate and conjoin ourselves to be as one public state or commonwealth." They add, further, that the first object aimed at by them is to preserve the liberty and the purity of the gospel and the discipline of their own churches; and, in the second place, to govern their civil affairs by such rules as their written constitution and the laws enacted under its authority shall prescribe. To provide for these two objects - the liberty of the Gospel, as they understood it, and the regulation of their own civil affairs, they sought to embody in the form of distinct decrees, substantially the following provisions:
1. That there shall be every year two general assemblies or courts, one on the second Thursday of April, the other on the second Thursday of September; that the one held in April shall be called the court of election, wherein shall be annually chosen the magistrates - one of whom shall be the governor - and other public officers, who are to administer justice according to the laws here established; where there are no laws provided to do it in accordance with the laws of God; and that these rulers shall be elected by all the freemen within the limits of the commonwealth, who have been admitted inhabitants of the towns where they severally live, and who have taken the oath of fidelity to the new state; and that they shall all meet at one place to hold this election.
2. It is provided that after the voters have all met and are ready to proceed to an election, the first officer to be chosen shall be a governor, and after him a body of magistrates and other officers. Every voter is to bring in, to those who are appointed to receive it, a piece of paper with the name of him whom he would have for governor written upon it, and he that has the greatest number of papers with his name written upon them was to be governor for that year. The other magistrates were elected in the following manner. The names of all the candidates were first given to the secretary for the time being, and written down by him, in the order in which they were given; the secretary was then to read the list over aloud and severally nominate each person whose name was so written down, in its order, in a distinct voice, so that all the citizen voters could hear it. As each name was read, they were to vote by ballot, either for or against it, as they liked; those who voted in favor of the nominee did it by writing his name upon the ballot - those who voted against him simply gave in a blank ballot; and those only were elected whose names were written upon a majority of all the paper ballots handed in under each nomination. These papers were to be received and counted by sworn officers appointed by the court for that purpose. Six magistrates, besides the governor, were to be elected in this way. If they failed to elect so many by a majority vote, then the requisite number was to be filled up by taking the names of those who had received the highest number of votes.
3. The men thus to be nominated and balloted for were to be propounded at some general court held before the court of election, the deputies of each town having the privilege of nominating any two whom they chose. Other nominations might be made by the court.
4. No person could be chosen governor oftener than once in two years. It was requisite that this officer should be a member of an approved congregation, and that he should be taken from the magistrates of the commonwealth. But no qualification was required in a candidate for the magistracy, except that he should be chosen from the freemen. Both governor and magistrates were required to take a solemn oath of office.
5. To this court of election the several towns were to send their deputies, and after the elections were over the court was to proceed, as at other courts, to make laws or do whatever was necessary to further the interests of the commonwealth.
6. These two regular courts were to be convened by the governor himself, or by his secretary, by sending out a warrant to the constables of every town, a month at least before the day of session. In times of danger or public exigency the governor and a majority of the magistrates might order the secretary to summon a court, with fourteen days' notice, or even less, if the case required it, taking care to state their reasons for so doing to the deputies when they met. If, on the other hand, the governor should neglect to call the regular courts, or, with the major part of the magistrates, should fail to convene such special ones as were needed, then the freemen, or a major part of them, were required to petition them to do it. If this did not serve, then the freemen, or a majority of them, were clothed with the power to order the constables to summon the court, after which they might meet, choose a moderator, and do any act that it was lawful for the regular courts to do.
7. On receiving the warrants for these general courts the constables of each town were to give immediate notice to the freemen, either at a public gathering or by going from house to house, that at a given place and time they should meet to elect deputies to the general court, about to convene, and "to agitate the affairs of the commonwealth." These deputies were to be chosen by vote of the electors of the town who had taken the oath of fidelity; and no man not a freeman was eligible to the office of deputy. The deputies were to be chosen by a major vote of all the freemen present, who were to make their choice by written paper ballots - each voter giving in as many papers as there were deputies to be chosen, with a single name written on each paper. The names of the deputies when chosen were indorsed by the constables, on the back of their respective warrants, and returned into court.
8. The three towns of the commonwealth were each to have the privilege of sending four deputies to the general court. If other towns were afterward added to the jurisdiction, the number of their deputies was to be fixed by the court. The deputies represented the towns, and could bind them by their votes in all legislative matters.
9. The deputies had power to meet after they were chosen and before the session of the general court, to consult for the public good, and to examine whether those who had been returned as members of their own body were legally elected. If they found any who were not so elected, they might seclude them from their assembly, and return their names to the court, with their reasons for so doing. The court, on finding these reasons valid, could issue orders for a new election, and impose a fine upon such men as had falsely thrust themselves upon the towns as candidates.
10. Every regular general court was to consist of the governor and at least four other magistrates, with the major part of the deputies chosen from the several towns. But if any court happened to be called by the freemen, through the default of the governor and magistrates, that court was to consist of a majority of the freemen present, or their deputies, and a moderator, chosen by them. In the general court was lodged the "supreme power of the commonwealth. In this court the governor or moderator had power to command liberty of speech, to silence all disorders, and to put all questions that were to be made the subject of legislative action, but not to vote himself unless the court was equally divided, when he was to give the casting vote. But he could not adjourn or dissolve the court without the major vote of the members. Taxes also were to be ordered by the court; and when they had agreed upon the sum to be raised, a committee was to be appointed of an equal number of men from each town to decide what part of that sum each town should pay.
This first constitution of the New World was simple in its terms, comprehensive in its policy, methodical in its arrangement, beautiful in its adaptation of parts to a whole, of means to an end. Compare it with any of the constitutions of the Old World then existing. I say nothing of those libels upon human nature, the so-called constitutions of the Continent of Europe - compare it reverently, as children speak of a father's roof, with that venerated structure, the British Constitution. How complex is the architecture of the latter! here exhibiting the clumsy work of the Saxon, there the more graceful touch of later conquerors; the whole colossal pile, magnificent with turrets and towers, and decorated with armorial devices and inscriptions, written in a language not only dead, but never native to the island; all eloquent, indeed, with the spirit of ages past, yet haunted with the cry of suffering humanity and the clanking of chains that come up from its subterranean dungeons.
Mark, too, the rifts and seams in its gray walls - traces of convulsion and revolution. Proud as it is, its very splendor shows the marks of a barbarous age. Its tapestry speaks a language dissonant to the ears of freemen. It tells of exclusive privileges, of divine rights, not in the people, but in the king, of primogeniture, of conformities, of prescriptions, of serfs and lords, of attainder that dries up like a leprosy the fountains of inheritable blood; and, lastly, it discourses of the rights of British subjects, in eloquent language, but sometimes with qualifications that startle the ears of men who have tasted the sweets of a more enlarged liberty. Such was the spirit of the British Constitution, and code of the seventeenth century. I do not blame it that it was not better; perhaps it could not then have been improved without risk. Improvement in an old state is the work of time. But I have a right to speak with pride of the more advanced freedom of our own.
The Constitution of Connecticut sets out with the practical recognition of the doctrine that all ultimate power is lodged with the people. The body of the people is the body politic. From the people flow the fountains of law and justice. The governor and the other magistrates, the deputies themselves, are but a kind of committee, with delegated powers to act for the free planters. Elected from their number, they must spend their short official term in the discharge of the trust, and then descend to their old level of citizen voters. Here are to be no interminable parliaments. The majority of the general court can adjourn it at will. Nor is there to be an indefinite prorogation of the Legislature at the will of a single man. Let the governor and the magistrates look to it. If they do not call a general court, the planters will take the matter into their own hands and meet in a body to take care of their neglected interests.
One of the most striking features in this new and at the same time strange document is that it will tolerate no rotten-borough system. Every deputy who goes to the Legislature is to go from his own town, and is to be a free planter of that town. In this way he will know what is the will of his constituents and what their wants are.
This paper has another remarkable trait. There is to be no taxation without representation in Connecticut. The towns, too, are recognized as independent municipalities. They are the primary centres of power older than the constitution - the makers and builders of the State. They have given up to the State a part of their corporate powers, as they received them from the free planters, that they may have a safer guarantee for the keeping of the rest. Whatever they have not given up they hold in absolute right.
How strange, too, that in defining so carefully and astutely the limits of the government, these constitution-makers should have forgotten the King. One would but suppose that those who indited this paper were even aware of the existence of titled majesty beyond what belonged to the King of kings. They mention no supreme power save that of the commonwealth, which speaks and acts through the general court.
Such was the Constitution of Connecticut. I have said it was the oldest of the American constitutions. More than this, I might say, it is the mother of them all. It has been modified in different States to suit the circumstances of the people and the size of their respective territories; but the representative system peculiar to the American republics was first unfolded by Ludlow - who probably drafted the Constitution of Connecticut - and by Hooker, Haynes, Wolcott, Steele, Sherman, Stone, and the other far-sighted men of the colony, who must have advised and counselled to do what they and all the people in the three towns met together in a mass to sanction and adopt as their own. Let me not be understood to say that I consider the framers of this paper perfect legislators or in all respects free from bigotry and intolerance. How could they throw off in a moment the shackles of custom and old opinion? They saw more than two centuries beyond their own era. England herself at this day has only approximated, without reaching, the elevated table-land of constitutional freedom, whose pure air was breathed by the earliest planters of Connecticut. Under this constitution they passed, it is true, some quaint laws, that sometimes provoke a smile, and, in those who are unmindful of the age in which they lived, sometimes a sneer.
I shall speak of these laws in order, I hope with honesty and not too much partiality. It may be proper to say here, however, that for one law that has been passed in Connecticut of a bigoted or intolerant character, a diligent explorer into the English court records or statute-books for evidences of bigotry and revolting cruelty could find twenty in England. "Kings have been dethroned," says Bancroft, the eloquent American historian, "recalled, dethroned again, and so many constitutions framed or formed, stifled or subverted, that memory may despair of a complete catalogue; but the people of Connecticut have found no reason to deviate essentially from the government as established by their fathers. History has ever celebrated the commanders of armies on which victory has been entailed, the heroes who have won laurels in scenes of carnage and rapine. Has it no place for the founders of states, the wise legislator who struck the rock in the wilderness, and the waters of liberty gushed forth in copious and perennial fountains?"
- - - - John Marshall
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