Annotated Debates of the 1818 Constitutional Convention
| Publication year | 2021 |
65 CBJ S-3. ANNOTATED DEBATES OF THE 1818 CONSTITUTIONAL CONVENTION
Connecticut is today governed by the Constitution of 1965. About 90% of the language derives from the Constitution of 1818. Before 1818 Connecticut did not have a written constitution, unless the Fundamental Orders of 1639 or the Charter of 1662 signed by Charles 11 qualifies. And even if one or both do qualify, very little in the 1818 Constitution is based on any specific language in the Fundamental Orders or the Charter. For lawyers and judges seeking the meaning of today's Constitution, the debates of the 1818 Convention therefore are crucial.
The 1818 debates are crucial for another reason. Connecticut was one of only two former colonies which did not write a constitution in the late eighteenth century after declaring independence. (The other was Rhode Island, which waited until civil war in the 1840s.) Connecticut waited until 42 years after the Declaration of Independence and 31 years after the Federal Convention. While we tend to think of both 1818 and 1787 as a long time ago, 1818 was as different from 1787 as today is from 1959. For that reason, what was said to justify language in drafting the U.S. Constitution in 1787 is not a safe guide for construing similar language in 1818.
Not only do times change in 31 years, but Connecticut's colonial history is entirely different from the general experience. All the other colonists (again with the exception of Rhode Islanders) were governed by someone other than themselves before 1776. But there were no royal governors, no royal judges and no royal troops in Connecticut, except for a year and a half in the late 1680s. (One may recall the Charter Oak incident.)
So when 1776 arrived, Connecticut's citizens did not tar and feather their governor. He was one of their own: Jonathan Trumbull, the only colonial governor who supported the American Revolution. This is of importance in construing the Connecticut Constitution, for Connecticut, unlike other colonies, did not fear a tyrannical executive. The Chief Executive, moreover, had been subordinate to the Legislature since the 1630s.
Here is not the place to discuss the many ways our colonial experience differed from others (fn1) The gubernatorial example is mentioned merely to show once again that what happened in 1787 is not a safe guide for understanding what happened in 1818.
So why was a constitutional convention called in 1818? There were three basic reasons: (1) to disestablish the Congregational Church, (2) to provide for separation of powers, and (3) to make permanent an expanded suffrage.(fn2) These reasons are entirely different from what motivated the Founding Fathers in 1787. The Federalist Party held onto power in Connecticut longer than anywhere else, but in the election of 1817 a coalition of Tolerationists (primarily Episcopalians and Baptists, who were opposed to the established Congregational Church) and Republicans elected a Tolerationist governor, Oliver Wolcott, and a Tolerationist lower house of the General Assembly. In 1818, the Federalists were also swept from the upper house. After minimal debate, the General Assembly voted to call a constitutional convention, with each town electing the same number of delegates as they had representatives. This meant that towns existing before about 1780 had two votes; the newer towns had one vote.
While the Republicans were in favor of calling a convention and the Federalists generally were not, the Federalists, rather than simply obstructing or boycotting the 1818 Convention, nominated the best legal minds, many of whom were elected by their towns. Thus almost half of the 200(fn3) delegates were Federalist. (The numbers cannot be determined precisely because the delegates are nowhere listed by party.)
The Convention was held for three weeks in August and September 1818 in Hartford at the State House. The official Journal of the Constitutional Convention, published in 1873, is not very helpful to lawyers looking for evidence of intent. Mostly the official journal just records the motions and votes, and even there it is incomplete. There is hardly any mention of the debates.
Like the Federal Convention, therefore, the 1818 Convention did not make an official record of the debates. Unlike the Federal Convention, the 1818 Convention had no delegates like James Madison taking detailed notes of the debates (and keeping them in secret for several decades) - Fortunately, and also unlike the Federal Convention, the 1818 Convention was not held in secret. The Connecticut (Hartford) Courant and the Connecticut (New Haven) Journal were granted permission to have one reporter each on the floor "for the purpose of taking sketches of the proceedings and debates."(fn4) These reporters made detailed notes, which were immediately published in both the Courant and the journal over four or five weeks in September 1818 (September 1 through September 22 for the Courant; September 1 through September 29 for the journal). The reporters apparently pooled their notes, for the Courant and Journal reports are virtually identical. Thus Connecticut's voters, unlike the states in 1787-88, could know what was said at the Convention when they voted to ratify the Constitution.
These newspaper reports have long been known to scholars but have been virtually inaccessible to the general public. The microfilm at the State Library is difficult to read and many parts can be read only by filling in the illegible portions of one newspaper copy with the legible portions of another. The complete newspaper reports of the debates are reprinted here verbatim for the first time in 172 years. Where there is a significant discrepancy in wording between the Courant and journal reports, my preference is used in the text, and the discrepancy is discussed in a footnote. The journal breaks up the proceedings into slightly more readable paragraphs than the Courant does, so the journal's version of paragraphing is used throughout. Where there is an insignificant discrepancy in wording, punctuation, spelling, or use of italics (mainly for emphasis), the Courant version is used throughout unless it is clearly in error. Such discrepancies are frequent and are not noted. When the two newspapers agree on the text I reproduce it exactly as it was printed; I do not believe a 172-year-old document is improved by modernizing its spelling or punctuation.
Where the wording of a motion or the tally of a vote is given in the official journal, its language or the tally is given in preference to the newspaper version where there is a significant discrepancy. The discrepancy is then discussed in a footnote. Also, there are several days when the newspaper reports are even sketchier than the official journal, especially near the end of the Convention. For those days I have used the text of the official journal. When this occurs, I make a reference in a footnote.
The official Journal often and the newspapers occasionally list how every delegate voted on the roll call votes. I have omitted these lists except for the final vote on the Constitution. However, I have noted in brackets how those delegates who participated in the debate on important motions voted. Occasionally a yea or nay vote total differs from the list of the delegates voting yea or nay. In that situation, I have counted the yeas and nays myself as listed in the official Journal.
The reader should be warned that many of the most interesting remarks are by delegates who were on either the right or the left fringe and ended up voting against the Constitution. Prominent in this category are ex-Governor Treadwell (right fringe) and Alexander Wolcott (left fringe), along with Timothy Pitkin (in the middle, but he too voted no). The most important speakers who were of moderate views and ended up voting for the Constitution are Attorney Nathan Smith, retired Chief Justice Stephen Mitchell, Federal judge Pierpont Edwards, General Nathaniel Terry, Henry Terry and Joshua Stow. Each of these delegates is discussed in a footnote at the first place he speaks.
The most important debates are as follows:
Nature of a Constitution, pp. 10-12;
Need for a Bill of Rights, pp. 16-23;
Various Provisions of the Bill of Rights, pp. 24-33;
Religious Freedom, pp. 25-30; 66-74;
Freedom of Speech, pp. 30-31;
Separation of Powers, pp. 35-36;
Popular Representation, pp. 39-44;
judicial Independence, pp. 52-64.
To avoid interrupting the flow of the debates, I confine annotations to footnotes, except for short bracketed insertions.
The proceedings of the Convention as reported in the newspapers and the official journal are as follows:
On Wednesday, the 26th inst.,(fn6) agreeably to an Act of the last Legislature of this State, the Delegates to the Convention assembled in the Court-House in Hartford.
At 10 o'clock (fn7) Judge Root (fn8) called for order; he suggested it as a question, whether the Convention should first proceed to the choice of a Clerk or their President. After some remarks it was decided that the Clerk should be first chosen.
Mr. N. Terry (fn9) suggested, that it was questionable with some, whether one could be chosen Clerk, who was not a member.
Mr. Treadwell (fn10) thought there could be no doubt that the Convention had a right to choose a Clerk who was not a member, but it might be doubted, whether it would be expedient to choose one who was not; there could be no inconvenience in choosing a member, and he thought on the whole it would be expected of them.
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