CONSTITUTIONAL HISTORY OF CONNECTICUT

Part 1

BY ROGER WELLES.
Published in Connecticut Magazine
February 1899
A CHAPTER with the above title, written by Hon. Henry C. Robinson, appears in the first
volume of the New England States, (pp. 448471) recently published. In commenting
upon the Fundamental Orders of 1639 the writer says, (p. 453), This constitution,
which is the archetype of all modern written constitutions, was made and adopted by the
people in mass meeting at Hartford. The statement has sometimes been made, in histories
and elsewhere, that this instrument was a treaty between three towns. There is absolutely
no foundation for the statement.
Two propositions are here advanced as follows:
First. The Fundamental Orders were made and adopted by the people in mass meeting.
Second. That these Orders were not a confederation of three towns.
While the foregoing has been the generally accepted opinion, the present writer proposes
to advance some reasons for believing that these Orders were made and adopted by the
General Court and not by the people. And that they were more properly a
Confederation of the three towns of Windsor, Hartford and Wethersfield, like the
Confederation of the Colonies after the Revolutionary War, than a Constitution adopted by
vote of the people.
THE MASS MEETING.
The first propositionthat the Fundamental Orders were made and adopted by the
people in mass meeting-seems to be contradicted by the Orders themselves, and by
all the probabilities and circumstances then existing.
First. THE COURT LANGUAGE OF THE ORDERS. All the eleven orders, except one,
are prefixed by the technical formula, It is ordered, sentenced and decreed. The one
exception is the ninth order which has the prefatory words, It is ordered and decreed,
leaving out the word sentenced," contained in the other orders. This is the language of
courts. This General Court ordinarily used the phrase, It is ordered, in reciting official
action by them taken. It is the language of courts to-day, and has been for centuries in
England and America. By universal usage a court speaks officially by orders, sentences

and decrees. This techpical language prefixed to these orders is the mint mark which
stamps them as the coin of the General Court. It is wresting their meaning to apply them
to the action of a mass meeting, and a counterfeiting of the coin of the court.
Second. THE LANGUAGE OF THE PREAMBLE. The language of the Preamble to the
Fundamental Orders is in harmony with this view, as follows (we use modern spelling.)
We, the inhabitants and residents of Windsor, Hartford and Wethersfield do, for
ourselves, and our successors, and such as shall be adjoined to us at any time hereafter,
enter into Combination and Confederation together in our civil affairs to be guided and
governed according to such Laws, Rules, Orders and Decrees as shall be made, ordered
and decreed, as followeth. Then follow the eleven Orders.
It is evident that the words Inhabitants and Residents are not to be taken literally, as
descriptive of those who adopted the Orders, as voters, for it is a matter of history that
only freemen were voters at that time, while Residents includes women and children.
These words are not then to be interpreted literally. What is a fair construction of this
language? If the Orders were adopted by the court, then the interpretation is plain. All
the members of the Court Magistrates and Committees were In-. habitants and
Residents of the three towns. They could with propriety say, We, do for ourselves and
our successors, enter into Combination and Confederation." They spoke of themselves as
representatives of the three towns in General Court assembled, and their successors in
that official body. The term successorsis a legal term, with a well defined meaning, and
as here used refers to suc ceeding members of the court. It is inapplicable to a mass
meeting, which can have no legal successors. The words, and such as shall be adjoined
to us at any time hereafter, properly refer to members of the court that might thereafter be
added to that body by the addition of new towns to the three named. This view is reenforced by the words, Enter into Combination and Confederation together, which
would be very naturally used if the representatives of separate towns were here speaking,
and were intending to Combine and Confederate these separate, independent towns into
one public State or Commonwealth. These three separate towns were certainly at that
date exercising separate and independent powers. The Massachusetts Commission had
expired. Nothing had taken its place. They were under no bond or league or charter.
Agawam had sent its magistrates and committees to the general court occasionally, during
the two years since the expiration of the commission, but it was under no legal obligation
to do so. In the exercise of its undisputed independency it had recently withdrawn from
the loose concert of action that had previously existed. The object of the present
Confederation was to prevent such secession in the future, and to establish a
government by general courts. In which said General Courts shall consist the Supreme
Power of the Commonwealth, as provided in the tenth order. A commonwealth consists
of people and territory. The territorial bounds of the three towns had been established at
the last court held under the Massachusetts Commission, on Feb. 21, 16367.
These towns as separate municipalities, embracing each a separate territory, a separate

civil and religious organization, entered into Combination and Confederation together,
to be governed by the laws, rules, orders and decrees which were then made, ordered
and decreed by the General Court, in the eleven orders which followed this preamble. A
representative body, like this General Court, may properly enact laws, rules, orders and
decrees, but a mass meeting could not with propriety use such language as descriptive of
its votes. Such enactments can only be passed by a deliberative body. They require more
time, discussion and deliberation than could be given in a mass meeting. The same mint
mark characterizes the preamble as the eleven orders.
Third. THE RECORD OF THEIR ADOPTION. if the Fundamental Orders had been
adopted by the people in mass meeting, it was such an unusual occurrence such a
progressive step towards freedom, so foreign to the sentiments of the time that such
action would most certainly have been noted in the records of the court, or mentioned in
some contemporaneous letter, diary or sermon of that day. That herald of advanced
thought, the Rev. Thomas Hooker, would have proclaimed it in clarion tones, but even he
had not advanced to that point. On the contrary, what do we find? A short and simple court
record, as follows:
14th January, 1638, the i r orders abovesaid are voted. This is the record of the court,
made in the courts record book, in the handwriting of Thomas Welles, the courts clerk. It
is a sufficient record of the action of the court, and cannot fairly be regarded as the record
of the unprecedented action of a mass meeting.
Fourth. THESE ORDERS REVISED BY THE COURT. These orders were notrecorded at
once. First, they did not cover the whole ground desired. The court record shows that at a
session held Sept. 10, 1639, Mr. Hopkins, Mr. Welles, Mr. Steele and Mr. Spencer were
instructed to ripen some orders that were left unfinished by the former court, as about
provision of settling lands, testaments of the deceased, and recording special passages of
Providence. These unfinished orders of the former court are undoubtedly the orders of
Jan. 14th, preceding, because no other court had passed orders of such a permanent and
fundamental character. (1 Col. Rec. 34.) Second, a general revision of these and all former
orders was directed to be made. This is shown by an order of the court passed Oct. 10,
1639, as follows:
It is ordered that Mr. Willis, Mr. Webster and Mr. Spencer shall review all former orders
and laws, and record such of them as they conceive to be necessary for public
concernment, and deliver them into the Secretarys hands to be published to the several
towns and all other orders that they see cause to omit to be suspended until the court takes
further order. (1 Col. Rec. 36.) Of course it was unnecessary to record orders that might
be suspended. The secretary withheld the record for the report. The language, all former
orders and laws clearly embraced the Fundamental Orders. These extracts show that the
court itself regarded all former orders and laws in the same light, and as equally subject
to revision, alteration and addition.
Fifth. THE ORDERS AMENDED BY THE COURT. The Fundamental Orders were

amended by the court on its own authority. In a session of the court held held Nov. 10,
1643, it was provided that Whereas, in the Fundamental Order it is said that such who
have taken the oath of fidelity and are admitted inhabitants shall be allowed as qualified
for choosing of deputies. The court declares their judgment, that such only shall be
counted admitted inhabitants, who are admitted by a general vote of the major part of the
town that received them. (1 Col. Rec. 96.) The Fundamental Order here referred to is the
seventh. Further citation is unnecessary to prove that the court amended these orders, like
all other orders passed by the court, with no thought, apparently, that the amended orders
should be submitted to the people for their approval; and yet such conduct is
unaccountable if they had thought it necessary to submit the original orders to their
approval.
Sixth. THE MANUSCRIPT RECORDS. The manuscript records of the court confirm the
foregoing views. The Fundamental Orders are recorded in the handwriting of Thomas
Welles, who was secretary from April 9, 1641, to May 18, 1648.
All the records of the court held previous to that of Jan. 14, 1638-9 are recorded on the
first ten pages of the manuscript volume. Then follows on the top of page eleven the first
entry in the handwriting of Thomas Welles, as follows:
"Ja. 14t, 1638. It is ordered that the treasurer shall deliver no money out of his hands to
any person without the hands of two magistrates if the sum be above zos., if it be under,
then the treasurer is to accept of the hand of one; but if it be for the payment of some bills
to be allowed, which are referred to some committees to consider of whether allowed or
not, that such bills as they allow and set their hands unto, the treasurer shall accept and
give satisfaction. (1 Col. Rec. 26.) This is the record of an ordinary order passed by the
court at that date. It follows other orders in regular sequence, without any blank space
between this record and that at the bottom of the next preceding page. The balance of page
eleven below, this record is left blank, as are also pages 12-21. This record shows that a
session of the court was actually held on the day that the Fundamental Orders were
passed. In the printed volume this record of the above vote is inserted after the
Fundamental Orders for some unknown reason. This mjsplacement has probably led to
some confusion of ideas upon this subject. The Fundamental Orders are recorded on pages
220-227 , as now paged, while the oaths are recorded on pages 215 and 216.
In the printed volume this order of arrangement is also reversed, although the original
paging is noted. The manuscript volume is made up of at least three separate original
manuscript records which were bound into one volume for their better preservation. The
Fundamental Orders are recorded in the third record book, which seems to have been a
statute book for ready reference, and shows much harder usage than other parts of the
volume.
As Mr. Welles was chosen secretary on April 9, 1641, it is altogether probable that the
committee of revision did not make their revision ready for record until after his election

as secretary, otherwise it would have been the duty of his predecessor to have recorded
them. If this be true the Fundamental Orders were in the hands of the committee some two
years, and did not flash into the world quite as a sunburst into the sky, as has been stated
by Mr. Robinson.
THE ORDERS WERE A CONFEDERATION.
First. So NAMED IN THE ORDERS. If the Fundamental Orders were a compact entered
into and adopted by certain magistrates and committees acting as representatives of the
three towns of Windsor, Hartford and Wethersfield, then it was a confederation, like that
of the colonies after the Revolutionary War. The best evidence is the document itself. The
fathers of this child so baptized it. It is expressly stated in the preamble of that instrument
that its makers enter into Combination and Confederation together. What right has any
one to contradict this record and say that it was not a Confederation ? Those who
framed and adopted this instrument knew the meaning of the word Confederation. In so
defining the character of this document they acted advisedly and appropriately if they
spoke for themselves as representatives of the three separate towns, and their successors in
office. That they did so speak and intended to bind the three towns is evident from the
eighth order, which expressly names the three towns and binds them in Confederation,
as follows:
"Eight. It is ordered, sentenced and decreed that Windsor, Hartford and Wethersfield shall
have power, each town, to send four of their freemen as deputies to every general court;
and whatsoever other towns shall be hereafter added to this jurisdiction, they shall send so
many deputies as the court shall judge meet, a reasonable proportion to the number of
freemen that are in the said towns being, to be attended thereiii: which deputies shall have
the power of the whole town to give their votes and allowance to all such laws and orders
as may be for the public good, and unto which the said towns are to be bound.
These towns had for two years been sending deputies or committees to the general court,
and this eighth order only perpetuated the former practice.
Second. ORIGIN ov REPRESENTATIVE GOVERNMENT. Representative government
had its origin in this country in the Massachusetts Colony.
At a general court held in Boston on May 14, 1634, the following order was passed:
That it shall be lawful for the freemen of every, plantation to choose two or three of each
town before every general court; to confer of, and prepare, such public business as by
them shall be thought fit to consider of at the next general court, and that such persons as
shall be hereafter so deputed by the freemen of the several plantations, to deal in their
behalf, in the public affairs of the commonwealth, shall have the full powers and voices of
all the said freemen, derived to them for the making and establishing of laws, granting of

lands, etc., to deal in all other affairs of the commonwealth wherein the freemen have to
do, the matter of election of magistrates and other officers only excepted, wherein every
freeman is to give his own voice. (1 Mass. Col. Rec. 118.)
These provisions were substantially embodied in the Fundamental Orders. The learned
Chief Justice Shaw of Massachusetts, in commenting upon this statute, in the case of
Commonwealth vs. Roxbury. 9 Grays Rep. 480, says, Here, then, was the origin of
representative government. He says further, in the same case, page 485, The terms
plantation, town and township seem to be used almost indiscriminately to indicate a
cluster or body of persons inhabitating near each other; and when they became designated
by a name, certain powers were :onferred upon them by general orders and laws, such as
to manage their own prudential concerns, to elect deputies and the like, which in effect
made them municipal corporations: and no formal acts of incorporation were granted till
long afterwards. ,
It has been held by our courts that our fathers brought from England to this country the
English common law with them, so far as it was adapted to their new surroundings, and
not modified or repealed directly or indirectly. So when our fathers came from
Massachusetts to Connecticut they came by permission of the general court of
Massachusetts, and under a commission issued by that court on March 3, 16356, to
eight persons to govern Connecticut for one year. This commission was the first organic
law of Connecticut.
Third. THE MASSACHUSETTS COMMISSION. The three towns of Newtown,
Dorchester and Watertown were municipal corporations in Massachusetts, according to
the definition of Judge Shaw, because they had been there named and invested with
corporate powers. When these towns migrated to Connecticut they were named as in the
commission, granted for their government, and recognized as continuing towns here: They
settled in three separate localities and carried on separate town governments, and
exercised the corporate powers of municipal corporations, granted lands and laid out
highways as they had done in Massachusetts, exercising acts of sovereignty of a high
order. They din so because they had a right to do so under Massachusetts law and the
commission. The three towns were mentioned by name in the preamble to the commission
as already transplanted into the River of Connecticut,or as shortly to go, and the
commissioners were given power, under the greater part of their hands, at a day or days
by them appointed, upon convenient notice, to convent the said inhabitants of the said
towns to any convenient place that they shall think meet, in a legal and open manner, by
way of court, to proceed in executing the power and authority aforesaid.
It is to be noticed that the inhabitants of the said towns are to be convened in a legal
manner, and they were to meet by way of court. The legal manner was pointed out in
the order of May 14, 1634, already cited, which was by representatives, and no other
manner was legal. And they were to convene by way of court and in no other way.
This necessarily excluded mass meetings or any submission of measures to popular vote.

In the case of the Fundamental Orders there is no record that the general court ever
submitted them to popular vote, or thought of so doing, and how the people could vote on
them without an official call to do so is not apparent. Certain official machinery has to be
provided in all such cases, which is wholly absent here.
The first representative assembly in Connecticut was the general court held at Hartford,
May 1, 1637, to which nine committees were chosen from the three towns, and the Pequot
War was inaugurated. These committees were elected under the Massachusetts statute,
above cited. There was no Connecticut statute which authorized their election. This proves
that the inhabitants of these three towns considered that they could exercise all the powers
granted to Massachusetts towns. They derived their town organizations from the
Massachusetts commonwealth. When they came to Connecticut it was by permission of
the Massachusetts court, and as town organizations, and these were recognized and
continued as such in their new homes, in the Massachusetts commission; when the latter
expired these town organizations did not die with the commission, but continued on in full
life. They separately elected town officers, legislated upon local affairs, disposed of public
lands and elected representatives to the General Court which declared war upon the
Pequot Indians, which court finally exercised the grandest act of sovereignty of all in
framing and adopting the Fundamental Orders of 1639, in which the towns gave up some
of the powers they had before exercised, judge Butler in \Vebster vs. Harwinton, 32 Conn.
136, says that the free planters who came here received from Massachusetts no corporate
powers. This was a fundamental error, as already shown. Again he says (p. 137) in
speaking of the Constitution of 1639 That extraordinary instrument purports on its
face to be the work of the peoplethe residents and inhabitants the free planters
themselves of the three towns. That is also a mistake, as we have endeavored to show, is
without historical support, and antagonized by the whole history of the times, and the
instrument itself. It is said that he afterwards acknowledged these errors.
Fourth. THE FUNDAMENTAL ORDERS, AN EVOLUTION. Agawam (now
Springfield) at first united with the three other towns by sending committees to the
General Court, but afterwards withdrew from her concert of action, and maintained a
separate and independent existence for some time after the confederation of the three
towns was consummated. With the defection of Agawarn before their eyes, and with no
common bond between the three towns, after the first year, the members of the General
Court intended to provide, and did provide, that such a secession should not occur again,
and therefore enacted the Fundamental Orders to associate and conjoin themselves to
be as one Public State or Commonwealth. They had cut loose from old Massachusetts
and now embodied in the Orders such laws of Massachusetts as they thought best, and
such other measures as were adapted to their times and circumstances, and bound their
respective towns by a firm Cornbination and Confederation. The three towns retained
their corporate powers after the expiration of the Massachusetts commission as before.
They continued the magistracy and the government by way of court, and this court
assumed and exercised the same broad powers conferred by the commission. For two
years after the commission expired the towns were free and independent municipal

corporations, self-governing, except as they voluntarily submitted to the orders of the

courts by them constituted. And because they were independent they could confer upon
their representatives the power to form one independent Confederation, instead of three
separate governments.
Fifth. THE ORDERS RECOGNIZED THE TOWNS. The prior existence of the three
towns is abundantly recognized in the Fundamental Orders. Their previous sovereign right
to dispose of lands is admitted and confirmed in the tenth order, which authorized the
General Courts thereafter, to dispose of lands undisposed of, to several towns or
persons. This recognizes and confirms the actions of the towns in the previous disposing
of lands within their own bounds. These lands the General Courts could not again
dispose of or disturb. Their power was limited to dispose only of lands undisposed of.
The disposition already made was recognized as legal, valid and binding. The first volume
of Hartford town votes, recently published, proves that Hartford exercised this sovereign
power of land disposal at the first recorded meeting held after the settlement in
Connecticut. The other two towns did the same thing. They also exercised the power of
eminent domain, in taking land for highways. (Canastota Knife Co. vs Newington
Tramway Co., 69 Conn. Rep. 164.)
Sixth. THE LETTER OF REV. THOMAS HOOKER. In the letter of Rev. Thomas Hooker
written in the autumn of 1638, and published in the Connecticut Historical Collection of
the Historical Society, Vol. I, page 13, appears a passage which shows how the magistrates
were elected from March 1636-7 to the adoption of the Fundamental Orders in January
1638-9. For, at the time of our election, the committees from the town of Agawam came
in with other towns and chose their magistrates, installed them into their government, took
oath of them for the execution of justice according to God, and engaged themselves to
submit to their government and the execution of justice by their means, and dispenced by
the authority which they put upon them, by choice.
Here is full evidence that the several towns chose their respective committees and the
committees chose the magistrates, and inducted them into office. The people did not
choose the magistrates. At a court held Feb. 9, 1637-8, which was the last court held
during the first year after the Massachusetts commission expired, the following order was
passed:
It is ordered that the General Court now in being shall be dissolved, and there is no more
attendance of the members thereof to be expected, except they be newly chosen in the
next general court. This was the Jast order passed at that session of the court.
The first court of the second year of this popular government was held March 8, 1637-8,
7-8, in which were eight magistrates and twelve committees chosen in the interval
between Feb. 9th, and March 8, 163 7-8. This was the election referred to by Rev. Thomas
Hooker in his letter above cited. Public sentiment had not then sufficiently advanced to
entrust such election to the direct vote of the people.

Seventh. THOSE WHO ADOPTED THE ORDERS. - The second court of this second
year, and the last court held prior to that of Jan. 14, 1638-9, (according to the record)
when the Fundamental Orders were adopted, consisted also of eight magistrates and
eleven committees, and was held April 5, 1638, As those who represented the three towns
or Hartford, Windsor and Wethersfield in this general court, undoubtedly were the
members of the court which adopted the constitution of 1639, so called, their names are
worthy of being inscribed in letters of gold upon our Connecticut temple of fame. The
members of this court represented the towns as follows
Of the magistrates, John Haynes and Thomas Welles were Of Hartford; Roger Ludlowe
and William Phelps were of Windsor John Plum and Matthew Mitchell were of
Wethersfield.
Of the committees, George Hull, Capt. John Mason, Thomas Ford, and Thomas Marshall
were of Windsor; John Wt bster, John Talcott, John Steele and Edward Hopkins were of
Hartford; Andrew Ward, Thurston Raynor and George Hubbard were of Wethersfield. To
those eight magistrates and eleven committees, in all probability, must the honor be
rendered of having originally framed and adopted the Fundamental Orders of Connecticut.
Each of these three towns was represented by two magistrates and four committees,
except Wethersfleld which apparently sent but three committees.
The records of Connecticut do not show that any constitutional question was ever
submitted to vote of the people till the constitution of 1818 was so submitted. Not even the
so-called constitution of 1776 was referred to popular vote, but was passed by the
legislature who spoke for The People of this State, as their predecessors, in adopting the
constitution of 1639, spoke for The Inhabitants and Residents of Windsor, Hartford and
Wethersfield.

To Part 2
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