Connecticut Bar Journal
76 CBJ 1.
THE COMMON LAW AND INDIVIDUAL RIGHTS IN CONNECTICUT BEFORE THE FEDERAL BILL OF RIGHTS
1THE COMMON LAW AND INDIVIDUAL RIGHTS IN CONNECTICUT BEFORE THE FEDERAL BILL OF RIGHTSBY CHRISTOPHER COLLIER*Americans' individual rights as laid out in what became the Bill of Rights in 1791 did not spring from the brow of George Mason in 1776 or James Madison in 1789. They were a long time in coming, and the journey traced different paths in different American colonies. Everywhere, however, they evolved from less liberal to more liberal through the 17th and 18th centuries. In some places, notably New England, individual rights grew paradoxically out of a system designed to keep man's naturally sinful self in check.
In Connecticut, the tension between restraint and liberation informs the whole journey beginning in 1639 and still unfolding in 1791 when the federal bill was adopted. The travelers moved through a legal culture that can be characterized as common-law constitutionalism. This culture included primitive constitutionalism based in written documents, legislative supremacy, and a great measure of judicial interpretation and innovation.
Connecticut's delegates to the Constitutional Convention of 1787 and its first congressmen under the new government reflected the state's not yet fully developed modern constitutionalism, a continuing commitment to extraconstitutional legislative and judicial actions, and a view of individual rights that still classed them second to community cohesion and well-being. Connecticut was one of the first colonies (with Massachusetts) to adopt a declaration of rights and one of the last (with Rhode Island) to adopt a modern bill of rights. The state did not ratify the federal Bill of Rights until 1939. This study traces the development of concepts of individual rights in Connecticut from the Fundamental Orders of 1639 to the ratification of the U.S. Bill of Rights in 1791. The story illuminates the path across the legal and constitutional landscape and helps to expose what was in the minds of the framers of the Bill of Rights in 1789.
NATURAL LAW PRINCIPLES
The history of Connecticut during the 179 years the colony and state were governed by an unwritten constitution reveals much about 18th-century constitution making in America. In the first place, in this day of slavish referral to constitutions - and the U.S. one in particular - for determining the "constitutionality" of actions of the several branches, it is necessary to remind jurists that the framers of our fundamental documents did not intend such an exclusive dependence. (fn1) The social contract as described in the Declaration of Independence was based on natural rights theories. Those theories were universally subscribed to by the 18th-century authors of American constitutions. Natural rights were natural; they didn't have to be written out anywhere in order to find protection from positive government.
It was the belief of many of the authors and ratifiers of the U.S. Constitution that the rights of individuals would be better protected if no attempt were made to identify and list them than if only a few of them were listed in bills of rights. A bill of rights was explicitly excluded at the Philadelphia convention of 1787 precisely because to list some might imply that those were the only ones that government would protect; and by listing some individual rights, it could be inferred that the U.S. Congress might properly legislate in the area of individual behavior. When, finally, a federal bill of rights was written, it included an explicit statement intended to cover precisely these concerns. Thus the Ninth Amendment says: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
The Connecticut common-law system that prevailed until largely - though not entirely - superseded by a written constitution in 1818, provides an excellent illustrative case of an American government built on natural law principles. (fn2)
In New England generally, but especially in Connecticut, natural law included biblical injunction. The Bible was much more likely to impose restrictions on individual behavior than to limit actions of governments. Thus natural law is not a context for natural rights alone, but also supports all sorts of restrictions necessary to the proper working of society. In the 17th century, social cohesion rather than individual freedom was the primary objective of government. As we shall see, this will change over time. Seventeenth-century political and religious leaders accepted biblical injunction as a matter of faith, of course. Nevertheless, they deduced rationally the necessity of allowing wide liberty to individuals in order to maintain social stability and equity.
Natural law for colonial Connecticuters also included the man-made legal traditions and court precedents that constitute the conventional understanding of common law. (fn3) Thus common law was folded into natural law. Though Connecticut colonials enjoyed the protection afforded by a Declaration of Rights adopted by the legislature in 1650, the rights listed there were merely suggestive and could, in any event, be altered at will by the legislature. A whole universe of individual actions and restrictions on government not yet articulated - perhaps not yet realized - existed to be called forth by legislators and jurists as the need arose in specific cases. As in other Anglo-American common-law jurisdictions, the rights of Connecticut citizens did not exist because they were listed somewhere; they were listed because they existed.
THE BASIS OF FUNDAMENTAL RIGHTS
The development of governmental guarantees of basic freedoms in the Land of Steady Habits begins with meager but firm foundations. Although by modern standards Connecticut society in the 17th century is most notable for its repressiveness, there were well-recognized individual freedoms and governmental limits. It was a colony where people were routinely fined, flogged, and imprisoned for speaking their minds or refusing to conform to governmentally imposed religious requirements, but nevertheless a wide range of activities was universally deemed off-limits to government. It was authoritarian, but not by any stretch of the imagination totalitarian.
Most important, beginning in the 1630s the whole social system was undergirded by a theory of government - revolutionary for its time - that separated church and state and placed the latter in the realm of man-made law. (fn4) In this context, however, man-made came to have a special meaning. The phrase ultimately included not only statutes enacted by the legislature, but also determinations made by judges as they interpreted statutes, articulated traditional common law, and construed the Bible. But lawgivers' authority was at least nominally limited by written as well as implied bounds. "The choice of public magistrates belongs unto the people, by God's own allowance," said the Reverend Mr. Thomas Hooker, a founder of Connecticut, and "they who have power to appoint officers and magistrates, it is in their power, also, to set the bounds and limitations of the power and the place unto which they call them.... Because the foundation of authority is laid, firstly, in the free consent of the people." (fn5) These admonitions were directed at the men who were to create a document that has often been called "the world's first written constitution" - the Fundamental Orders of 1639.
At the same time that he was instructing Connecticut's secular leaders in political theory, Hooker explained to Governor John Winthrop of Massachusetts that leaving governing to the discretion of magistrates "is a course which wants both safety and warrent. I must confess, I ever looked at it as a way which leads directly to tyranny, and so to confusion...." And, he continued, "if it was in my liberty, I should choose neither to live nor leave my posterity under such a government." All should be done "according to the sentence of the Law Thou shalt seek the Law at his mouth: not ask what his discretion allows, but what the law requires." The law, said Hooker, "ought to have chief rule over rulers themselves." (fn6)
Thus it was, then, that though the Fundamental Orders were established to "mayntayne the peace and union" of the settlers along the Connecticut River, and "an orderly and decent Government" over them, they also at the same time provided that in civil affairs the people were "to be guided and governed according to such Lawes, Rules, Orders, and decrees as shall be made,...." by a system spelled out in detail - a written constitution. (fn7) The hallmark of constitutionalism is the concept of limited government, and limited government is an important guarantor of individual rights. And though democracy was not born there, an essential element of it was. American constitutionalism begins in Connecticut.
Of course, this primitive constitutionalism was deeply flawed. The legislature could - and did - alter the Fundamental Orders. (fn8) There was in fact no limit to their power other than public opinion expressed through frequent elections. But the lower house was elected every six months from tiny constituencies.
THE DECLARATION OF RIGHTS
One of the reasons the Hartford congregation, and the others that settled at Windsor and Wethersfield, migrated west from Massachusetts was Hooker's...