The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• Select Essays In Anglo-american Legal History Volume I General Surveys
• A Table of British Regnal Years
• Part I.: Before the Norman Conquest
• 1.: Frederick William Maitland, a Prologue to a History of English Law 1
• 2.: Edward Jenks, the Development of Teutonic Law 1
• 3.: Sir Frederick Pollock, English Law Before the Norman Conquest 1
• Part II.: From the Norman Conquest to the Eighteenth Century
• 4.: Alice Stoppard Green, the Centralization of Norman Justice Under Henry Ii 1
• 5.: Edward Jenks, Edward I, the English Justinian 1
• 6.: Frederick William Maitland, English Law and the Renaissance 1
• 7.: Thomas Edward Scrutton, Roman Law Influence In Chancery, Church Courts, Admiralty, and Law Merchant 1
• 8.: William Stubbs, the History of the Canon Law In England 1
• 9.: William Searle Holdsworth, the Development of the Law Merchant and Its Courts 1
• 10.: James Bryce, a Comparison of the History of Legal Development At Rome and In England 1
• Part III.: The American Colonial Period
• 11.: Paul Samuel Reinsch, the English Common Law In the Early American Colonies 1
• 12.: St. George Leakin Sioussat, the Theory of the Extension of English Statutes to the Plantations 1
• 13.: Charles Mclean Andrews, the Influence of Colonial Conditions As Illustrated In the Connecticut Intestacy Law 1
• Part IV.: Expansion and Reform of the Law In the Nineteenth Century
• 14.: R. Robinson, Anticipations Under the Commonwealth of Changes In the Law 1
• 15.: John Forrest Dillon, Bentham’s Influence In the Reforms of the Nineteenth Century 1
• 16.: Charles Synge Christopher, Baron Bowen, Progress In the Administration of Justice During the Victorian Period 1
• 17.: Joseph Henry Beale, Jr., the Development of Jurisprudence During the Nineteenth Century 1
• 18.: James Bryce, the Extension of Roman and English Law Throughout the World 1
• Part V.: Bench and Bar From Norman Times to the Nineteenth Century
• 19.: John Maxcy Zane, the Five Ages of the Bench and Bar of England 1
• 20.: Van Vechten Veeder, a Century of English Judicature, 1800-1900 1
• 21.: James Kent, an American Law Student of a Hundred Years Ago 1

13.

THE INFLUENCE OF COLONIAL CONDITIONS AS ILLUSTRATED IN THE CONNECTICUT INTESTACY LAW1

By Charles McLean Andrews2

THE colonial era of our history has generally been treated with an insufficient appreciation of its economic forces, and, in consequence, there has been a tendency to minimize the importance of certain periods of that history which show little political activity and are to the world at large dull and uninteresting. Such a period is the first forty years of the eighteenth century, and in the following paper I hope to show why I think that, from the point of view of the English policy toward the colonies and their economic development, this period will in the future stand much higher in the estimate of historians than it does now. The discussion that follows involves a number of points of law, and carries us through a controversy which, although of immediate importance to Connecticut only, was of exceeding interest to all New England, and indirectly touches the general subject of colonial history.3

The starting point of the controversy and its underlying cause was the agrarian system of New England. It is well known to students of the subject that the methods employed in the division of lands by the proprietors of the various towns involved certain principles based on the necessities of a new country. We may believe, if we wish, that these methods were the expression of deep-seated racial traits, but it is more rational to take into account two influences only; first, the agrarian environment in which the settlers had been reared; and, secondly, the conditions and necessities that govern the settlement of a new and uninhabited country. These two considerations will concern us here.

Those who settled the New England colonies were—save in a very few cases—men of the burgher and freeholder class, to whom the detail of the English agricultural life was familiar. They had been inhabitants of towns and villages located on feudal estates and subject to a superior, the King or the lesser lay or ecclesiastical lord; they had in a large number of cases been reared in the midst of the English agricultural system, of which the village community with its long streets, its homesteads, its open fields divided into shots or furlongs and subdivided into what were originally acre and half acre strips, its meadows, pastures, common and waste, was the local unit and that part of the system with which they were in daily contact. To this system that of New England bears a striking resemblance. One cannot compare the old manor maps of the seventeenth and eighteenth centuries with any plan based upon the land records of a New England town without feeling that the similarities are more than coincidences. There is the same village street, the same homestead plots, the same great fields, the same shots and furlongs, and the same subdivision into smaller strips; there are the enclosed meadows held by a few, the pasture and the waste common to all, and there are numbers of trifling manners and customs which show the English origin. It was the local, non-feudal land system which was transplanted with important changes to New England, and formed the basis of the law of real property.

But were we to be satisfied with this statement of the case, we should be guilty of accepting a hasty analogy. There were other reasons why the local agrarian system of England was in its outward form reproduced by the New England settlers. Had it not accommodated itself to their notions of equality and equity, and to the economic needs of a people settling in a new and uninhabited country, it might have been altered and changed beyond recognition. But the local land-system of England was pre-feudal in its origin, and probably grew out of a primitive system of agrarian equality, a fact which the equal strips, the scattered holdings and the common rights serve to attest. The New England settlers were entering an environment similar to that out of which the English village came, and they therefore found it necessary to change the English local system but little in order to apply the methods of allotment demanded by a new country. The colonists took no retrograde step; all changes from the existing system at home were in keeping with the higher ideas of property and equality which the New Englanders brought with them. The principles which governed their action were three: first, that of preventing the engrossing of lands and their accumulation in the hands of a few, the dangers of which in England were familiar to the colonists;1 secondly, that of subserving the law of equity by treating every man fairly, not only in giving him a share in conquered or purchased lands, but also in so allotting that share that he might be subject to all the advantages and drawbacks that bore upon his neighbors;2 and thirdly, that of hastening settlement and the improvement of land.1 Land was therefore divided2 by the towns or by the bodies of proprietors into fields, called “squadrons” in Worcester, “furlongs” in Middletown, “shots” in Milford, and “quarters” in New Haven, and these were subdivided into smaller strips ranging from one acre3 to forty or more in size. Various methods were employed for obtaining equality,4 and every effort was made to hasten cultivation and to increase industry. Removal was discouraged by liability to forfeiture;5 alienation was limited by laws common to nearly every town in New England;6 the burden of taxation and the care of the fences, highways, etc., was distributed as evenly as possible; and every effort was made to increase the amount of land brought under cultivation. All this was characteristic of New England in general and of Connecticut in particular. The life in the latter colony was predominantly agricultural, the industrial and commercial aspects had hardly begun to appear, the government was republican—and for a hundred and fifty years of all the colonial governments it was the one most independent of the mother country1 —the laws made were adapted to the conveniences of the inhabitants rather than to the common and statute law of England, and the policy of the colony at all times was to remain hidden as far as possible from the notice of the home authorities. It is no wonder, therefore, that there should have grown up under the conditions—agrarian and economic—attendant on the settlement of a new, partly uninhabited, partly unconquered territory, laws based not on legal theory but on custom, laws that either were not known to English law1 or were not in accord with it.

Of all these laws none was more important, more an organic part of the life of the colony or fundamental to its welfare, than that which governed the disposal of intestate estates. It is manifest that people influenced by the principles already mentioned in their distribution of land would apply the same principles to the distribution of the realty of an intestate. They certainly would not have undermined the colonial structure by admitting into its construction methods foreign to the general plan. Primogeniture, favorable to the accumulation of estates, but unfavorable to a rapid increase of the inhabitants, a furtherance of agriculture, and a cultivation of the soil, and opposed to the natural law of equity, was not in accord with the principles of the New England settlers. The intestacy law was, therefore, the unavoidable and logical outcome of the principles which underlay the land-system of New England. This becomes the more apparent when we realize that for more than sixty years it existed as a custom in no way binding on the people, and that it did not become a law in Massachusetts until 1692, or in Connecticut until 1699.1 By the English common law the eldest son was the sole heir and was entitled to the whole estate exclusive of all other children; whereas the colonial law2 directed that the real estate of an intestate be distributed in single shares to all the children except the eldest son, to whom, following the ruling of the Mosaic Code, the law assigned a double portion.3 The Connecticut law was not the arbitrary act of the assembly of the colony; it was the sanctioning of a custom which had grown out of the consent of heirs to an intestacy, and which had been proved by experience to be the best adapted to the needs of the colony.4 Governor Talcott gives in brief the reasons for the intestate law in his instructions to Belcher:—“And much of our lands remain unsubdued, and must continue so without the assistance of the younger sons, which in reason can’t be expected if they have no part of the inheritance; for in this poor country, if the landlord lives, the tenant starves: few estates here will let for little more than for maintaining fences and paying taxes. By this custom of dividing inheritances, all were supply’d with land to work upon, the land as well occupy’d as the number of hands would admit of, the people universally imploy’d in husbandry; thereby considerable quantities of provisions are rais’d, and from our stores the trading part of the Massachusetts and Rhode Island are supply’d, the fishermen are subsisted, and the most of the sugars in the West Indies are put up in casks made of our staves. By means of this custom his Maj’ties subjects are here increased, the younger brethren do not depart from us, but others are rather encouraged to settle among us, and it’s manifest that New England does populate faster than the Colonies where the land descends according to the rules of the common law. And such measures as will furnish with the best infantry does most prepare for the defence of a people settled in their enemies country. If this custom be, so ancient and so useful, non est abolenda, sed privare debet communem legem.”1

Such were the conditions out of which the intestate law grew, and such were the reasons for its embodiment, after sixty years of customary use, into law. Economists can find evidence here for the study of land-appropriation in a new country; students of the history of law will be interested in the growth of customary law; but for us the interest is of a different character. The law was clearly contrary to the corresponding law in England. Certain disaffected ones in the colony, opposed to the government,1 and overzealous in finding flaws in colonial law and administration, and ever ready to exhibit such discoveries to the authorities in England, began to question the validity of the custom even before it became a law. This was done by Governor Talcott himself in 1691,2 and by Major Palmes in 1698,3 while in Massachusetts Dudley complained of the law in 1693.4 The question was not destined, however, to become prominent for nearly thirty years, but it early became of importance as part of a larger question, the forfeiture of the charters and the proposal to unite the charter and proprietary colonies to the Crown. The agitation to produce this latter result seems to have grown out of the desire to unite the colonies of Northern America under one military head,5 and was increased by the controversy over the right of appeal to the King in Council and the dissatisfaction arising therefrom. In Massachusetts a law had been passed regarding appeals, but it was annulled, altered, re-enacted, and again annulled.1 New Hampshire refused an appeal in the Allen case in 1701;2 Connecticut an appeal in the Hallam case in 1699;3 but in each of these cases the King in Council granted the petition for an appeal, resting the decision on the plea that it was the inherent right of his Majesty to receive and determine appeals from all his Majesty’s colonies in America.4 Connecticut, on the other hand, based its determination to resist such appeal upon its willingness that the Privy Council should be the interpreter of the colony’s law.5

It was not difficult to find additional charges. Complaints were made that the colony broke the Navigation Acts, harbored pirates, neglected to take the oaths required by law, encouraged manufactures, were negligent in military duties and in the erection of fortifications, encroached on the jurisdiction of the Admiralty, and opposed the authority of its officers, protected escaped soldiers, seamen and servants,6 and failed to comply with certain requirements of the home government—as in the case of the proclamation regarding coin, the instructions to naval officers, the command to aid New York with quotas of men against the French and Indians—etc. Through the influence of Dudley and the pertinacity of Edward Randolph, for it was he who personally led the campaign in the lobby of Parliament,7 a bill was brought forward in 1700-1701 for reuniting to the Crown the governments of several colonies and plantations of America—Massachusetts Bay, New Hampshire, Rhode Island and Providence Plantations, Connecticut, East and West New Jersey, Pennsylvania, Maryland, Carolina and the Bahamas and St. Lucia Islands—on the ground that “the severing of such power and authority from the Crown and placing the same in the hands of subjects hath by experience been found prejudicial and repugnant to the trade of this Kingdom and to the welfare of his Majesty’s other plantations.”1 The bill, however, by reason of “the shortness of time and the multiplicity of other business,”2 failed to pass, but the Board thinking it very likely that it would come up again for consideration, desired from the colonies all possible information that would aid in the matter. From 1701 to 1706 charges continued to be sent in. Quary, Bass, Congreve, Larkin, Dudley, and Cornbury all drafted lists of complaints. The Board in a representation to the Council in 1703 expressed its opinion “that the great mischief can only be remedied by reducing these colonies to an immediate dependence on the Crown.”3 For Connecticut it was a time of anxiety. The influence of the Hallam case, of the controversy over the Narraganset country and the boundary line with New York, of the case of the Mohegan Indians,4 of the petition of the English Quakers against a Connecticut law, was to keep certain aspects of Connecticut’s management steadily before the Board of Trade and to lead to what were often serious misrepresentations to the home authorities. In consequence Connecticut got a bad name. In 1704 the colony narrowly escaped having a governor put over it1 through the authority of the King in Council. But that body evidently preferred that Parliament should take the matter in hand, and in 1706 a bill similar to that of 1701 was introduced. It passed the House of Commons but failed of passage in the House of Lords.2

The long list of charges against the proprietary and charter governments already on the books of the Board was continually supplemented by additional charges from Congreve,3 Dudley, Quary, Gauden and others.1 The failure of the bill of 1706 was a severe blow to its supporters, and the colony for several years experienced a relief from its anxiety. In 1715 the matter came up again because of the complaints regarding banks, naval stores, the trouble with Carolina, etc., and the House of Commons appointed a committee composed of members of the Board of Trade “to inspect into the miscarriage and to prepare a bill to resume the grants of the proprietary governments.”2 Again a list of charges was prepared,3 but, whether another failure was feared4 or a juster policy decided upon, a different plan was tried for Connecticut. The committee of the Privy Council directed the Board of Trade to inquire of the colony—through Jer. Dummer, the agent in London—whether it would be willing to surrender its charter peaceably. Connecticut’s answer is a masterpiece of firmness and politeness and, although in the name of the Governor and Company, was undoubtedly written by Saltonstall.1 He commends the justice and honor of the ministry in thus referring the question to the corporation, a method wise and just, possessing not the least appearance of force and terror. He contrasts it with previous methods unreconcilable with common rights, law and custom, of which the colonies had had full experience. This spirit of fairness he attributes to the existing King and Ministry, who, though unlimited and subject to none, yet observed the limits of wisdom and justice, and were tender of what others should enjoy as well as of their own prerogative; who did not make use of their power to terrify the colony out of its rights and property, but gave it leave to speak for itself. After these quieting words, the Governor and Company regret that they cannot choose that resignation of their rights which the King and Ministry think might be best for them, and conclude this portion of the letter with the following instructions to the agent: “You are therefore hereby directed in plainest terms to acquaint their Lordship that we can’t think it our interest to resign our charter. But on the contrary, as we are assured, that we have never by any act of disobedience to the Crown made any forfeiture of the privileges we hold by it, So we shall endeavor to make it manifest and defend our right whenever it shall be called in question.”

The limits of this paper will not allow a further discussion of the attitude of the home government toward the Colony. It is, however, fundamentally important that we should appreciate the relations which had previously existed, and the one-sided character of the information which the Board of Trade, the Privy Council and even Parliament itself received. The mere titles of the papers containing charges against the proprietary and charter governments cover twenty-one pages of an entry book. Regarding Connecticut there is almost nothing to relieve the unfavorable impression received by the Board, except a letter now and then from the Governor, and the answers to the queries that were occasionally sent to the colony. The references to Connecticut in the Journal are rare, and generally relate to some complaints against her. It is difficult to determine how far the Board believed the statements sent it, but its representations do not show any inclination to lighten the impression which the letters from the colonies give.

This was the position that Connecticut occupied in the sight of the home authorities when John Winthrop, a grandson of one Connecticut Governor and nephew of another, denying the validity of the intestate law, claimed all the real estate of his father who had died in 1717, and, ignoring the right which he had of appeal from the Court of Probate to the Court of Assistants, expressed his determination to appeal to the King in Council. This determination was carried out, and as the result of Winthrop’s efforts the intestacy law was annulled by an Order in Council Feb. 15, 1728, as contrary to the laws of England and not warranted by the charter.1 The case was a private one and the colony was not heard in the matter. There is no doubt that the defendant, Lechmere, was inadequately defended by some one little versed in the colony’s affairs, that his evidence was far from complete, his purse far from full, and that he was especially in want of “a good sword formed of the royal oar.”2 Winthrop, on the other hand, was ably defended by Attorney General Yorke and Solicitor General Talbot. The Committee of the Council did not call in the assistance of the Board of Trade, and there are no documents bearing on this phase of the case among their papers. Winthrop did not rest his case solely upon the question of the validity or invalidity of the law, but he repeated most of the charges, which were already familiar to the Council and its committee, and thereby, as Mr. Parris said, “very much assisted his case.”1 The legal aspects of the trial have attracted but a small amount of attention from historians, for the incidents were neither dramatic nor politically exciting, yet there were involved in the case principles of great moment to the colonists, questions, the solution of which was to affect the future relations between them and the home government.

The effect of the vacating of the law shows at once that the Privy Council acted without a reasonable understanding of the matter at issue. It based its opinion upon the literal interpretation of the charter from its own point of view, and was entirely without an honest appreciation of the equity in the case.2 Two conditions, defensible in themselves, had come into conflict. For the moment the customary law of one country, arising from one set of historical circumstances, was to be enforced in another country, the agrarian and economic life of which had brought into existence a customary law very different. The common law of England and the common law of the colony did not agree. The latter did not represent the defiant will of a body of law-makers, it represented a principle of land-distribution which the experience of the colony had shown to be best adapted to its own prosperity and continued existence. This becomes clearer when we note what would have been the economic effects of voiding the intestate law.

The first result would have been a general unsettling of titles to lands left intestate or alienated after intestate settlement. This was due to the fact that a large majority of the people consisted of farmers and agriculturists, possessing little personal estate.1 Many of these settlements reached back to the beginnings of the colony, and the invalidating of titles would have affected large numbers of descendants who would thus have been liable to ejection at the instance of the eldest heir.2 Such ejectment concerned the younger sons and the female heirs, for whom under such conditions there would be no place in the colony.3 Even if the titles to estates already settled in the Court of Probate should be allowed to stand, yet there were many estates of twenty or thirty years standing that had never been settled, and more of a later date, so that the suffering would only be limited, not ended. Furthermore, litigation would have at once ensued, which would have involved the colony in an economic loss greater than that entailed in a resistance to the decree. The agrarian system of the towns would have given to this litigation a curious complexity. Quarrels were certain to arise within the towns themselves regarding the ownership of the common and undivided lands.4 Would the title rest with the heirs at common law of those who received by grant from the King, that is, the patentees, or with those who as proprietors and contributors to the common fund purchased the lands from the Indians, and received their shares according to the size of their families and the amount of their subscription?5 Judges, too, in settling all these disputes, would have been thoroughly perplexed as to whether they should obey the decree, in which case the foundation of the colony would have been “rip’t up from the bottom and the country undone;”1 or whether they should disregard the decree, and so bring down upon the colony the loss of its charter.

But the injustice would have concerned others besides those holding lands derived from intestate settlements. Creditors who had taken lands in payment of debts—a procedure not in favor with the colony because of the cheapness of lands—would be defrauded, unless the lands, which might have considerably improved in their hands, had been made chargeable for the original loan and the improvements.2 Furthermore, the will and intent of many who had died intestate might have been frustrated, inasmuch as they, trusting in the colonial custom, with which they had been perfectly satisfied, had made no will.3

In addition to these results, so contrary to justice and equity, certain economic consequences would have inevitably followed the carrying out of the Order in Council, consequences detrimental not merely to the colony, but, judging from the standpoint of her clearly avowed colonial policy, to England as well. The voiding of the law meant the abatement of husbandry. The towns of all New England, and of Connecticut in particular, were, at this stage of their development, predominantly agricultural. The results of such abatement would be a desertion of lands, a lessening of population, and a decrease in the supply to the neighboring provinces, which, engaged in trade and fishery, were dependent on Connecticut for provisions.4 It was a clever stroke on the part of the colonial supporters of the law when they showed that its confirmation was adapted to the furthering of England’s policy, and that its vacation was to the injury of that policy. Voiding the law would lead to manufacturing, for the younger sons from sheer necessity, driven from agriculture, would turn to trade and manufacturing, or else would be obliged to leave the country.1 Thus, by this argument, England was placed on the horns of a dilemma as regards the colonies, either beggary or insufficient population on the one side, or the promotion of trade and manufactures on the other. This, as Law surmised, “was a tender plot,” and there is no doubt that as an argument it was frequently repeated in order that it might be “thôt of at home.”2 These economic results are sufficient to show that the law was an organic part of the life of the colony. Indeed, as Talcott said in a later letter to Francis Wilks in London, “we cannot think our law will be looked upon to be contrary to the law of England for the colony could not have been settled without it.”3

The colony immediately made every effort through its agents, Dummer, Belcher, and Wilks, to defend the law if possible. There was reason for hope in such action from the fact that the Massachusetts law of 1692, after which the Connecticut law has been modeled, with one amendment, one addition, and three explanatory acts had been confirmed by the Crown.4 Furthermore, the law was a general one in New England and, if the Order in Council were to be insisted on, it might endanger the titles to a considerable amount of New England real estate; and it would seem incredible that the home government could persist in so crippling the colonies.5 Therefore the colony was justified in believing that, if all the arguments were fairly presented to the Lords of Trade, the good offices of that Board might be obtained.1 This was an important step, for by the report of the committee of the Council the matter had been referred to the Board.2

The strongest argument against the law was that it was contrary to the law of England, and in the discussion which followed the colony exerted all its strength to minimize the force of this argument. The question is an important one in itself, but the value of the discussion lies in the expression of opinion on the part of the English and the colonial authorities regarding the interpretation and strict construction of the phrase “contrary to the law of England.” There were three views held regarding the English law in the colonies, as to how far it was binding there, and to what extent the colonial corporations had been invested by their charters with law-making powers. The first of these opinions was held by all those who were opposed to the colonial prerogatives, such as Palmes, Hallam, Gershom Bulkeley, in his “Will and Doom,” Winthrop the appellant, in his “Complaint” and “Memorial,” Dudley and others. According to this view the colonies were erected as corporations within the kingdom of England; they held by and were subject to the laws of that kingdom, and their legislative power extended to the making of by-laws and ordinances only for their own good government, provided the same were not contrary to the law of England.3 From this point of view all laws passed by the colonial assemblies which were of a higher character than by-laws, and which, even within that limit, touched upon matters already provided for by English common or statute law, were illegal. The colonies were as towns upon the royal demesne.

The second view was expressed by the agent of Connecticut, Francis Wilks, and was doubtless held by those at home who, with English proclivities, were nevertheless well disposed toward the colonies. According to this view, it followed that when the colonists came to America they brought with them the common law to which they were entitled as Englishmen, and such part of the statute law as was in force before the settlement of the plantations took place. To this body of law, written and unwritten, binding on the colonies, were to be added all such later Acts of Parliament as expressly mentioned the plantations, and such Acts as had been re-enacted for the colony by her own legislature.1 But no other statutes passed since the settlement could be held as binding. Therefore, according to Wilks, that law was contrary to the law of England which was contrary to the common and statute law prior to the settlement, or to the statute law made afterwards which expressly mentioned the plantations.

Both of these views, however, were strictly opposed by the colony. To the statement that the common and statute law existent at the time of the settlement was in force in the colonies, the answer was made that the charter nowhere directed the administration to be according to one law or another, whether civil, common, or statute law;2 that by a decision of the Council itself an uninhabited and conquered country was to be governed by the law of nations and of equity until the conqueror should declare his laws,3 and that if such declaration had not been made, then it was evident that the law of equity and of nations governed and not the common or statute law of England.4 Therefore, the colony argued, English common law could be binding beyond the sea only in case it had been accepted by the colonist’s own choice.1 From the nature of the laws passed, it is evident that the colonial government never considered the common law to be in force within its jurisdiction, and in this belief it said it had never been corrected or otherwise instructed from the throne. In this connection Governor Talcott pertinently asks, “And why should we be directed to make laws not contrary to the laws of England if they were our laws, for what propriety can there be in making that a directory to us in making a law which was our law before we made it.”2 As this was the case, it is evident that something more was implied in the charter than the making of by-laws. In that document was proposed an object, the religious, civil, and peaceable government of the colony, which could not have been attained by the passing of by-laws. The charter implied a power to enact in the colony that which was law in England and also any good and wholesome law which was not contrary to it; and such limitations could not be to by-laws only.3 Furthermore, the colony insisted that the analogy to a municipal corporation in England was not sound, inasmuch as it was the privilege of Englishmen to be governed by laws made with their own consent.4 The colonies were not represented as were the English towns in Parliament; therefore the only laws made with the consent of the colonies were those of their own legislatures, and those were more than by-laws. The opinion of the colony, therefore, was that the phrase, “contrary to the law of England,” referred only to laws contrary to those Acts of Parliament which were in express terms designed to extend to the plantations.5 That this had been the practice as well as the theory in Connecticut is evident from Congreve’s letter to the Board of Trade, in which he says, “They allow of none of the laws of England either common or statute to be pleaded in their courts.”1

According to the opinion held by Winthrop and Wilks the intestate law was clearly contrary to the law of England. Even Lieutenant Governor Law of the colony seems to have inclined to this view, for he came to the conclusion that the colony in acting in the past, contrary to the view expressed by Wilks, had been mistaken.2 But Gov. Talcott was led into no such concession; he stood firmly on the ground already taken, and adroitly persisted in maintaining the complete validity of the intestate law. He probably realized that under the circumstances concession was more dangerous than resistance, and that to accept Wilks’s theory would be to strike a blow at the absolute integrity of the charter. “We would,” he writes, “with the greatest prostration request your Majesty, that when we find any rules of law needful for the welfare of your Majesty’s subjects here, which is not contrary to and agrees well with some one of the Tryangles of the law of England, as it then is, or heretofore had been, when England might have been under the like circumstances in that particular, which we are when we make the law, that it might not be determined to be contrary to the law of England.”1

The opinions of the English lawyers of this period, so far as I am able to discover them, are neither definite nor complete. In a report to the Board of Trade, Attorney General Yorke and Solicitor General Talbot upheld the colony’s position regarding by-laws. They affirmed that the assembly of the colony had the right by their charter to make laws which affected property, on condition that such laws were not contrary to the law of England; but, although it seems probable that they intended “law of England” to cover the whole law, they did not make it clear what they meant by this term.2 Yet these same lawyers in a later judgment declared that in one particular case, the barring of an heir to entailed lands lying in the plantation by a process of fine and recovery in England, the common law did not extend to the plantations, unless it had been enacted in the plantation where the entailed lands lay.3 The Board itself supported the colony against adverse criticism4 when it stated that according to the charter the laws were not repealable by the Crown, but were valid without royal confirmation unless repugnant to the law of England.5 The most definite expression of opinion, however, was adverse to the view which the colony took. Mr. West, in a judgment rendered regarding admiralty jurisdiction in the plantations, took the ground that wherever an Englishman went there he carried as much of law and liberty with him as the nature of things allowed; that, in consequence of this, the common law of England was the common law of the colonies, and that all statutes in affirmance of the common law passed in England antecedent to the settlement of any colony were binding upon that colony. He also held, as did Wilks, that no statutes made since the settlements were in force unless the colonies were particularly mentioned.1 His view, which I do not doubt was very generally held by English lawyers outside of the colony, was simply a legal opinion, and was probably based on little real knowledge of the subject to which it referred. We are, therefore, fortunate in having another and different view of the matter of greater practical value. In 1773 the legal advisor of the Board, Francis Fane, returned to the Board his comments upon the first installment of the laws of Connecticut and he completed his examination of the entire 387 laws in 1741. In this report opinion came face to face with facts, and the lawyer realized the anomaly of attempting to force English law upon a people whose conditions of life were in so many particulars different from those at home. In his comment upon the intestate law Fane notices that it was different from the law of England, but it is evident that this aspect of the case troubles him little. He is chiefly concerned with matters of rule, form, and procedure, and it is in these particulars that his real objection to the law lies. He recommends the repeal of the Act,2 but would substitute another law “either as it is now done in England or by such other methods as may best fit the province where this law is to take effect.” In this statement there was for the colony a world of meaning. Furthermore, in his criticism of the later amendments and additions to the law he says nothing about their being contrary to the law of England; his recommendations for repeal are based upon the ground of uncertainty or upon some other defect of the law which would naturally attract a lawyer. An analysis of his comments upon the remaining 384 laws1 gives us approximately the same result. The laws recommended for repeal were too strict, severe or unreasonable, incomplete or not severe enough, inexact, giving too much power to certain bodies, etc. In only one instance is a law declared contrary to the law of England, and then it is the legal principle implied in a part of the law that a man can be convicted on a general presentment which is declared repugnant. It is true that in a number of cases he recommends the repeal of a law which is different from the law of England, but it is not on the ground of its difference that the recommendation is made; it is because the law is unsatisfactory from a legal standpoint and would not be a good law in any civilized community. In nine cases, however, he considers the colony’s convenience, and recommends the acceptance of the law, even though it would not have been proper for England or was not so good as the corresponding law in England. In these instances he recognizes the principle that the colony was generally the best judge of its own law, and practically concedes two of the points for which the colony contended, the principle of equity and that of custom. Fane’s comments are uniformly fair and reasonable, and contain not a trace of animus toward the colonies.2

The circumstances and discussions thus far outlined are necessary to an understanding of the influences that acted upon the Board when it came to draw up its representation to the committee of the Council upon the petition of Belcher and Dummer.1 In this petition the colony begged the King to confirm by an order in Council to the inhabitants of the province the lands already distributed under the intestate law, to quiet them therein, and to enable them to divide the lands of intestates in the same manner in the future.2 The colony had already discussed at considerable length the wording of the petition, debating whether it would be best to ask for a confirmation by an Order in Council, or to apply for leave to bring forward a bill in Parliament. Belcher strongly advocated the latter method.3 Talcott in a forcible communication presented his fears of Parliament in case the matter were brought to its attention, and he had good reason to fear if we are to judge from later events. He was a prophet in his apprehension that it might lead Parliament to inquire whether the government had not accustomed itself to take the same liberty of making other laws contrary to the law of England; and, further, that it might lead Parliament to the opinion that the charter had not made them a government or province but only a corporation. Yet, on the other hand, it was equally true that neither the petition of Belcher nor the introduction of a bill in Parliament was needed, if that body had desired to end the privileges of Connecticut in 1730 as it practically did those of Massachusetts in 1774.1

It is not quite clear to which conclusion the agents arrived, though in the petition upon which the Board based its representation, confirmation was asked for by an Order in Council.2 This request at once raised an exceedingly important question expressive of the political change which had come over England since the Revolution of 1688. Could the King by virtue of his prerogative and without the assistance of Parliament grant the wish of the colony? To this Attorney Francis Fane answered, at the request of the Board, as follows: “I cannot pretend to say whether the King by virtue of his prerogative can do what is desired by the petitioners. But I must submit it to your Lordship’s consideration supposing the King had a power by his prerogative of gratifying the request, whether under the circumstances of this case it would not be more for his Majesty’s service to take the assistance of Parliament, as that method will be the least liable to objection as well as the most certain and effectual means of gratifying the request of the petitioners.”3 That this was the opinion widely held among English lawyers is evident from Belcher’s letters, in which he mentions Lord Chancellor King and the counsel which he had secured as inclined to this view.4

With this opinion of its legal advisor before it, the Board summoned to its presence the agents of the colony and Winthrop and listened to the arguments on both sides.1 It then finished the draught of its own representation. Many influences underlay the wording of that report, influences which it has been the purpose of this paper to disclose. The report was the resultant of at least three forces: first, the desire to gratify the colony in confirming the lands already settled under the intestate law, for Dummer had ably presented the inconveniences which would follow the upholding of the decree of the Council; secondly, the determination to syncopate the privileges of Connecticut on the ground that she had been too independent of the Crown, and had too long a list of charges against her to escape some limitation of her powers; and thirdly, the conviction, in view of the changing constitutional relations of King and Parliament, that the only safe method whereby such end could be accomplished was to apply to the King for leave to bring in a bill for that purpose.2 A few extracts from the report will exemplify this. After recommending compliance with the request of the colony, the Board adds, “And we think this may be done by his Majesty’s royal license to pass an Act for that purpose with a saving therein for the interest of John Winthrop, Esq. But we can by no means propose that the course of succession to lands of inheritance should for the future be established upon a different footing from that of Great Britain. In return for so great a favor from the Crown we apprehend the people of Connecticut ought to submit to the acceptance of an explanatory charter whereby that colony may for the future become at least as dependent upon the Crown and their Native Country as the people of Massachusetts Bay now are whose charter was formerly the same with theirs. And we think ourselves the rather bound in duty to offer this to his Majesty’s consideration because the people of Connecticut have hitherto affected so entire an independence of Great Britain that they have not for many years transmitted any of their laws for his Majesty’s consideration nor any account of their public transactions. Their governors whom they have a right to choose by their charter ought always to be approved by the King, but no presentation is ever made by them for that purpose. And they, thô required by bond to observe the laws of Trade and Navigation, never comply therewith, so that we have reason to believe that they do carry on illegal commerce with impunity, and in general we seldom or never hear from them except when they stand in need of the countenance, the protection or the assistance of the Crown.”1

With this report the case of Winthrop vs. Lechmere, growing as it did, out of the land system of the New England colonies, has brought us step by step dangerously near to the principles and theories which underlay restriction on the one side and revolution on the other. How far this particular case and the discussions which grew out of it aided in the shaping of those principles, we need not attempt to discover. As part of the larger question of the uniting of the colonies and the annulling of the charters, its influence was direct and definite. After 1700 the fact of parliamentary supremacy was proven each time an effort was made to limit the independence of the proprietary and charter colonies and to bind them more firmly to the Crown; and at the same time the continuance of such efforts for thirty years increased the familiarity of Parliament with the task of controlling the colonies. In this the English authorities were not showing themselves either arbitrary or despotic. The Board of Trade, the Crown lawyers, even the Privy Council acted according to their convictions, which, though honest, were based undoubtedly upon insufficient and ex parte information. Connecticut’s policy of reticence was in part responsible for this; she had made it possible for her enemies to fill the minds of the home authorities with suspicion, and there was just enough truth at the bottom of the charges for them to be extremely effective. Other colonies as well were on the black list of the Board. Among intelligent Englishmen both in and out of Parliament there was a strong feeling that some of the colonies were not acting consistently with the interests of England, and needed the strong hand of Parliament to curb them, even to the taking away of their treasured privileges.1

But the blow was not to fall yet. Parliament was perhaps not yet prepared to intervene in the management of colonial affairs, however general the opinion seemed to be that it had a right, in view of the events of 1688, to assume this function of the royal prerogative. Although for thirty years ample opportunities for so doing had been given, yet the rights and privileges of the charter colonies remained unimpaired. Perhaps the colonies had given insufficient provocation; if so, time would soon render the provocation greater, not because of any defiant act of the colonies but because of the inevitable tendency of their economic development. The intestacy law is but a straw showing the direction of the wind; it has a legal stamp upon it but it is in origin and effect an economic measure.

The representation of 1730, followed soon after by that of 1733, resulted in a vehement body of resolutions of the House of Lords, but no further effect was seen. One session of Parliament passed and still another, but, as no steps were taken pursuant to the resolutions, the colony began to breathe more freely. That it would have resisted the acceptance of an explanatory charter is evident; it is fortunate that it was never called upon to put the matter to the test. While the fate of Connecticut was thus hanging in the balance, another case, that of Phillips vs. Savage, was carried by appeal from the Superior Court of Massachusetts to the King in Council.1 Here a decision in favor of the intestacy law gave new courage to Connecticut, and in another private suit, that of Clark vs. Tousey, the matter was again brought before the King in Council. The appeal was dismissed, however, by the Privy Council in 1745 not through any decision as to the right or wrong of the case, but because of the fact that Clark had not prosecuted the appeal within a year and a day as required by the Council. Connecticut accepted the dismissal as a decision in her favor, although it was in fact nothing of the kind. It ended the matter only because no one dared to make another appeal and the question never came up again.2

With this dismissal the colony returned, to all outward appearance, to the position that it had occupied seventeen years before. But this was not true in fact. Seventeen years of experience with England’s policy, years of argument and controversy, had enlarged the mind and toughened the sinews of Connecticut’s leaders, and had formed a body of tradition, made up of higher reverence for the charter and higher regard for its integrity, to be handed down to the succeeding generation. It was not the influence of any theory of the fundamental rights of man, or of any inherent hostility to England that underlay the attempt of Connecticut to keep her charter and to preserve her privileges; it was the determination to maintain at any cost the integrity of the colony and the welfare, happiness, and prosperity of its people. In the issue which arose in 1730, as well as in that which arose in 1765, it will be found that economic causes and conditions drove the colonists into opposition to England quite as much as did theories of political independence or of so-called self-evident rights of man.

We have now followed step by step this important question from its starting point in the land system of New England to its final issue in the prerogatives of Crown and Parliament. The land system, representing the pre-feudal idea rather than the feudal, was reproduced in America with some important changes. Out of this sprang the law of intestacy, differing in principle from that of England which rested upon feudal law. This difference between the common law of the two countries was taken advantage of by certain disaffected ones of Connecticut who sought to benefit themselves by appealing to England against the colonial law. This matter, at first private, touching the lands and interests of but a few persons, became of wider importance by the vacation of the law by the King in Council. By this the agrarian harmony of Connecticut, and possibly of New England, was threatened. This roused the colony, and the issue became a part of the larger question of the relations of the proprietary and charter colonies to the Crown. This made the matter of importance not merely to Connecticut and New England, but to the other colonies of this class as well. But the influence of the Winthrop case did not stop here; it passed even higher, and raised the question of fundamental importance to all the colonies as to the constitutional relations of Crown and Parliament. The settlement of this question foreshadowed the action which Parliament was to take forty years after.

PART IV.

EXPANSION AND REFORM OF THE LAW IN THE NINETEENTH CENTURY

• 14.Anticipations under the Commonwealth of Changes in the Law.R. Robinson.
• 15.Bentham’s Influence in the Reforms of the Nineteenth Century.John Forrest Dillon.
• 16.Progress in the Administration of Justice during the Victorian Period.Charles Synge Christopher, Baron Bowen.
• 17.The Development of Jurisprudence during the Nineteenth Century.Joseph Henry Beale, Jr.
• 18.The Extension of Roman and English Law throughout the World.James Bryce.

[Other References on this Period:

In Select Essays:

The History of Code Pleading in America and England, by C. M. Hepburn: Volume II.

Changes in the English Law of Real Property during the Nineteenth Century, by A. Underhill: Volume III.

In other Treatises and Periodicals:

A Century of Law Reform, by various authors (1901); chapters on Equity, Corporations, etc.

Two Centuries’ Growth of American Law, by various authors (Yale Studies, 1901); chapters on Equity, Corporations, Property, Evidence, etc.

Treatise on Statutes, by F. Dwarris (1848); a list of reformatory statutes from Charles II to Geo. III, pp. 835-868.

The History of Legislation concerning Property in England, by J. F. de Villiers (1901).

Law Reform in the United States and its Influence Abroad, by D. D. Field, American Law Review, August, 1891.]

[1 ]These passages are extracted from an essay on “The Connecticut Intestacy Law,” Yale Review, 1894, volume III., pp. 261-294.

[2 ]Professor of History at Bryn Mawr College, since 1889, and at Johns Hopkins University. A. B. Trinity College (Connecticut) 1884, A. M., 1890; Ph. D. Johns Hopkins 1889; L. H. D. Trinity 1905.

Other Publications: The River Towns of Connecticut, 1889; The Old English Manor, 1892; The Historical Development of Modern Europe, 1896, 1898; Contemporary Europe, Asia, and Africa, 1891-1902; Guide to the Materials in British Archives for American Colonial History (Carnegie Institution), 1907-1908.

[3 ]My attention was originally directed to this subject by the publication of the first volume of the Talcott Papers by the Connecticut Historical Society and the remarks of Judge Mellen Chamberlain upon them as printed in the Proceedings of the Massachusetts Historical Society, March, 1893. The second volume of the Talcott Papers is now in press, but I am indebted to the editor, Miss Mary K. Talcott, a descendant of the old Connecticut governor, for advance sheets as far as completed.

[1 ]“Whereas much experience shows that sundry inconveniences do arise to the burdening, disturbing or depopulating of smaller plantations, were either sundry lotts or accommodations are engrossed into one hand or possessed or held by unsuitable or unfit persons,” etc. Guilford Mss. Book of the More Fixed Orders. “Where as there hath been a great abuse in several towns and plantations in this colony in buying and purchasing Home-lotts and laying of them together by means whereof great depopulation may follow,” etc. Laws of the Colony of Connecticut (ed. 1715), p. 51.

[2 ]I have discussed this question briefly in an article entitled “Die Stadt in Neu-England,” in the Zeitschrift für Social-und Wirthschafts-geschichte, vol. ii. pp. 103-131, 224-240, especially p. 232, note 58. To the instances there quoted I will add two others, as the question is an important one.

“And whereas by the Law of Natural Equity and Right all those that joyned in making the conquest and those that joyned in subdueing the country from a Wilderness (as it then was and in a great measure still is) to a condition fit for tillage and Profit should also joyntly and share in the advantages that arise from this their Conquest and Industry and accordingly the first Planters did devide the lands thus obtained among themselves,” etc. “An Act for the Settlement of Intestate Estates,” Conn. State Archives, Foreign Correspondence, II 146, Cf. Talcott Papers, I, 148.

“It is a fundamental agreement that all lands whether upland, meadow or home lotts should be made equal, that if it was not equall to other mens in the quality of it it should be made up in quantity, or if it unequall in distance of place it should be made equall in quantity also. So that where you find any parcell to exceed in number of acres more than it is charged with rate you may know that it is allowed for satisfaction to equall his lands to other mens.” Milford Mss. Town Records, Dec. 28, 1646. For all the extracts from the Milford Town Records I am indebted to Miss J. L. Brownell.

[1 ]“It was inhabitants and not land that was wanting.” Talcott Papers I, p. 145, Cf. Conn. Col. Rec. II, pp. 185, 187. Palfrey estimates the value of land in 1713 at 6 farthings an acre. History of New England, IV, p. 364.

[2 ]There was greater regularity and uniformity than in England. One system was new, the other old. But by curving the allotted strips, by running the shots and fields a little more irregularly, by throwing in a few gores and headlands, we should have what would be in its main features the same system.

[3 ]“It is agreed by vote that the remainder of the Dreadful Swamp . . . shall be laid out into acre lotts.” Milford Town Records, I, p. 62.

[4 ]The “Purchase Right” which each proprietor had in the town was determined not only by the amount of money subscribed to the purchase of the lands but also by the number of heads in each family. I have discussed the “Purchase Right” at some length in “Die Stadt in Neu-England,” and have endeavored to show that its scattered character was due to the desire to obtain equality. This principle permeated the system as the following will show: “Ordered that in this division every one shall have his division in two places, half in the nearest field and the other half in the furthest.” Milford Town Records, I, p. 10. “The field was divided into two parts lengthwise and the order of holders in one tier would be reversed in the other thus making the distribution more equal.” River Towns of Connecticut, pp. 44-45, J. H. U. Studies, VII.

[5 ]Rules to this effect are to be found in every book of Town Records. Milford Town Records, I, p. 13. River Towns, p. 50.

[6 ]“Ordered that no man shall sell his house but first he must propound his person and chapman to the town and within twenty days after his propounding it the town to answer his desire to take it off or let him take his chapman always provided the Inhabitants may buy and sell within themselves notwithstanding this order.” Milford Town Records, I, p. 11. I have quoted this law from the Milford Records, because it contains some new points supplemental to the many others printed before and has itself never been printed. A similar law passed by the Colony of Connecticut came to the notice of the legal advisor of the Board of Trade who commented on it thus: “This Act would be very extraordinary in England but whether it may not be proper in a country where they are encompassed with enemies is humbly submitted to your Lordship’s consideration.” The limited range of this law, which grew, as did the intestate law, out of the necessities of the settlement, and the brief period during which it was enforced, prevented it from assuming so important a place in the relations between England and the colonies.

[1 ]The colonies most exempt from English interference and control were of course Maryland, Pennsylvania, Connecticut, Rhode Island, and Massachusetts. Massachusetts, however, had a royal governor and was obliged to deliver her laws for the approval of the Council within three years after they had been passed, though if they were not repealed within that time they could not be repealed at all. Pennsylvania had a five years limit. But the laws of Connecticut and Rhode Island were not repealable by the Crown; these colonies never lost their charters as did Massachusetts, never came into direct dependence upon the Crown as did Maryland for a short time, and were almost outside the knowledge of the Privy Council and the Board of Trade. There is, however, one difference in the attitude of these colonies toward English law which is interesting. Rhode Island, by referring herself to the law of England in cases where she had none of her own, made some of the laws of England to be her own laws. Connecticut, on the other hand, in case of doubt referred to “some plain and clear rule of the Word of God.” In 1665 the Deputy Governor and the Assistants desired the advice of the General Court concerning incest, whether the law of the colony “that orders in defect of a law we should have recourse to the Word of God for our law” were binding or not. The Court decided that the colony should act according to the Word of God. Conn. Col. Rec., II, p. 184. Robert Quary commented on this statement in the Book of Laws as follows: “The people are of a very turbulent, factious and uneasy temper. I cannot give their character better than by telling your Lordships that they have made a body of laws for their government which are printed; the first of which is that no law of England shall be in force in their government till made so by act of their own. Having told your Lordships this, I think there is no further room to admire at any extravagancy acted in the government.” Quary to the Board of Trade, B. T. Papers, Plantations General, Entry Book; D, fol. 201, Cf. Milford Town Records, I, 1; Talcott Papers I, 143, II. Appendix. “Instructions to Agent.” Gershom Bulkeley in his “Will and Doom” complains that “by this Law all the Law of England (Common or Statute or other) is exploded at once.” (From MSS. copy of the transcript sent over by Lord Cornbury in the possession of the Conn. Hist. Society. The transcript is in B. T. Papers, Proprieties, N. 20.) I know of but two Connecticut Acts directly taken from the English Statute law before 1750. First, “Act about Bastards” from 21 Car. c. 27 and second, “Act for Ease of those who soberly Dissent” from 1 Wm. and M. c. 18 commonly called the Toleration Act. Five others, however, are probably based on English Statute law. 1. “Act concerning the Dowry of Widows.” 2. “Act concerning forms of Writs.” 3. “Act concerning Deputies Salary.” 4. “Act for Regulating Juries and Wiltnesses.” 5. “Act relating to Sureties upon Mean Process in Civil Action.” In 1750 the Colony printed all Acts passed by Parliament which were considered to be binding on the colony. There are ten Acts in all, and none of these had been reënacted by the colony. Conn. Col. Rec. viii. p. 352.

[1 ]Two laws certainly were not known to English law. 1. “Act for the punishment of Lying.” 2. “An Act for the preventing of Oppression.”

[1 ]Conn. Col. Rec. IV, p. 307. “I have observed,” writes Lieut. Governor Law, “the law to be of no ancienter date than 1699 and our old law book, dated in 1672, prescribes no rule excepting the righteousness and equity lodged in the breast of the County Court.” Law to Talcott, Talcott Papers, I, p. 119. Also I, pp. 122-123, 144, 392-394. II, pp. 225, 244-245. The October Orders of 1639 contain the earliest form of the law, as follows: “But when any prson dyeth intestate the sayd orderers of the affayres of the Towns shall cause an Inventory to be taken and then the Public Court may graunt the administracon of the goodes and chattels to the next of kin, joyntly or severally, and divide the estate to wiefe (if any be) children or kindred as in equity they shall meet.” Conn. Col. Rec., I, p. 38. This was repeated verbatim in the Code of 1650. In the Revision of 1673 to which Law refers there are slight changes in phraseology but none in meaning.

[2 ]“The said Court of Probate shall and hereby are fully empowered to order and make a just distribution of the surplusage or remaining goods and estate of any such intestate, as well real as personal in manner following: That is to say one-third part of the personal estate to the Wife of the Intestate (if any be) forever, besides her dower or thirds in the housing and lands during life, where such wife shall not be otherwise endowed before marriage; and all the residue of the real and personal estate by equal portions to and among the children and such as shall legally represent them (if any of them be dead) other than such children who shall have any estate by settlement of the Intestate in his lifetime, equal to the other’s share; children advanced by settlement or portions not equal to the other shares; to have so much of the surplusage as shall make the estate of all to be equal; except the eldest then surviving (where there is no issue of the first born or any other eldest son) who shall have two shares or a double portion of the whole, and where there are no sons the daughters shall inherit as co-partners.”

[3 ]Deut. xxi. 17.

[4 ]Another clause of the Act makes this clear. “Unless where all the parties interested in any estate being equally capable to act, shall mutually agree of a division among themselves and present the same in writing under their hands and seals, in which case such agreement shall be accepted and allowed for a settlement of such estate and be accounted valid in law.” Winthrop said the same in his Memorial to the committee of the Privy Council. “The Memorialist begs leave further to observe to your Lordships that the pretended custom of distributing intestate real estates amongst all the children was no otherwise introduced than by the consent of parties when lands in those parts were of little or no value.” Talcott Papers, I, p. 394.

[1 ]Talcott Papers, I. pp. 145-146, Cf. 188-189.

[1 ]Major Palmes refused to pay his dues because he considered the government restored after the revolution of 1688 “no government.” Col. Rec. IV, pp. 325-326.

[2 ]It is not unlikely that there were other early unrecorded protests against the custom, though probably not many, if there were any, before 1688. Gershom Bulkeley speaks as follows in his “Will and Doom,” “if a Man dye Intestate they will and do . . . . distribute his lands among sons and daughters, &c., as if they were pots and kettles. . . . So that their law will not allow an heir or Inheritance at the Common Law which is another repugnancy to the Law of England.” It is an interesting fact that Governor Talcott himself, who afterwards so loyally defended the intestate law, should have petitioned the legislature in 1691 when but twenty-two years old against the equal division of his father’s estate, and should have claimed possession of the real estate by right of primogeniture. Talcott Papers, I, p. xix.

[3 ]Palfrey, IV, p. 491.

[4 ]“For want of which [i.e. the same English laws] there are different laws and forms of administration very disagreeable not (only) in lesser matters but even in the descent of estates at the common law.” Dudley’s “Paper on the Governments of New England, New York, etc.” B. T. Papers, New England, vol. 7. F. 13.

[5 ]The period from 1695 to 1715 was a time of trial for the colonies. They were attacked by the French, were in constant trouble from the Indians, were disturbed by the many irritating reports of royal officers and merchants in the colonies, and were not sufficiently established to resist encroachment and to maintain a position of self-reliance. As a result, they were often in distress, and it is little wonder that many in New England and New York petitioned for a stronger central government. In 1697 Harrison, Ashurst, Sewall of Salem and others petitioned for a union of colonies, the Board of Trade thought that security could be obtained in no other way, the Lords Justices favored the scheme, and, in consequence, although the agents of New Hampshire, New York and Connecticut opposed the plan, New Hampshire, Massachusetts and New York were joined in 1697 under one governor, and with Connecticut and Rhode Island were placed under Bellomont as their military head. The year before an admiralty system had been erected for the colonies by commission under the seal of the Admiralty of England. In the North courts were erected at Boston and New York.

[1 ]Palfrey, IV, pp. 172-174, 200.

[2 ]Ibid, pp. 218-219.

[3 ]Caulkins, History of New London, pp. 222-227.

[4 ]Palfrey, IV, p. 224.

[5 ]In a deposition taken before Governor Cranston of Rhode Island two men, Fitch and Mason, said that they had heard Governor Fitz John Winthrop say, “I (or we) will grant no appeals for England but I (or we) will dispute it with the King, for if we should allow appeals I will not give a farthing for our charter.” B. T. Papers, Proprieties, O. 39.

[6 ]Letter from the Board of Trade to Governor Blakeston of Maryland. B. T. Papers, Maryland, Entry Book, B. ff. 88-90. Winthrop in his complaints probably did little more, if we may judge from what we are told of them in Talcott’s reply, than voice the complaints current among those opposed to the colonial administration. Documents relating to the Colonial History of New York, IV, p. 1079.

[7 ]Randolph’s bill of expenses incurred amounted to £96. 11.6. B. T. Papers, Proprieties, G. 20.

[1 ]The text of the Act is to be found in B. T. Papers, Proprieties, Entry Book, C. ff. 426-430.

[2 ]Board of Trade to Governor Blakeston. B. T. Papers, Maryland, Entry Book, B. ff. 86, 83.

[3 ]B. T. Papers, Plantations General, Entry Book, C. f. 240. Every effort was made to discover charges particularly against Connecticut and Pennsylvania. In 1703 Penn wrote to the Crown, “I observe your bent is extremely strong to bring all proprietary governments under the disposition of the Crown.” B. T. Papers, Proprieties, M. 19.

[4 ]It is interesting to note that the quarrels in the colony which brought it to the attention of the Board were in large part agrarian. This was but natural in a community where husbandry was dominant. Talcott said as late as 1728 “many of the actions here (in Connecticut) are conversant about nothing else” (than the titles of land). Talcott Papers, I, 157. The Hallam appeal rested on the denial of a devise of land to “the ministry” of the colony, on the ground that it was either in violation of the Statute of Mortmain, or, if it could not be so construed, it was a devise to “the ministry” recognized by the laws of England, that is, the ministry of the Episcopal Church. As all towns in Connecticut made grants to “the ministry” or to “the church,” a decision in Hallam’s favor would have made havoc with ecclesiastical land titles in the towns. Caulkins, History of New London, pp. 222-227.

[1 ]The Board of Trade sent a representation based on the charges of Dudley and Cornbury to the Privy Council. The Council sent it to Northey and Harcourt, the Crown lawyers. They replied advising that a governor be placed over both Rhode Island and Connecticut. This opinion was reported to the Board and was communicated to the agents of the colonies. A hearing was appointed at which they were to state why, in point of law, the Crown should not appoint governors over these colonies during the war. The hearing appointed for Nov. 30, 1704, was put off from week to week until Feb. 12, 1705. In the meantime Lord Cornbury sent over Gershom Bulkeley’s “Will and Doom” to strengthen the case against Connecticut. The work was received Jan. 16, 1705. It is probable that at the hearing the agents were able to show the inexpediency, if not illegality of a military governor, for on the day of the hearing the Council, evidently convinced that the matter could be best attended to by Parliament, directed the Board to draw up a list of charges, which was done, the chief source being the letters of Cornbury and Dudley. The order in Council also instructed the Board to transmit the list of charges to the Governor of New York and New England. This was done April 18, 1705, and Cornbury was ordered to send copies to Connecticut and Rhode Island, where public depositions were to be made as to the truth or falsity of the charges. (Documents relating to the Colonial History of New York, IV, p. 1141.) Upon the evidence thus received the Board based its representation of Dec., 1705, in consequence of which an Order in Council was issued directing the Board to lay before her Majesty the misfeances of the charter governments. (B. T. Journal, 18, f. 153.) This report was sent to Mr. Secretary Hedges. He in answer sent back a draught of a bill relating to the uniting of the colonies to the Crown. After some alteration, Feb., 1706 (f. 219), this bill was introduced into Parliament. B. T. Papers, Proprieties, M. 47; Journal, 18, ff. 177-178, 252, 281; 20, ff. 9, 11.

[2 ]Palfrey, IV, 368-369. See previous note.

[3 ]Charles Congreve to the Board of Trade, Dec. 4, 1704. This letter containing a list of complaints against Connecticut was written at the order of the Board. B. T. Papers, Proprieties, M. 49.

[1 ]Quary to Board of Trade, Jan. 10, 1708-9. B. T. Papers, Plantations General, Entry Book, D. ff. 200, 205. The following extract will show the nature of Quary’s misrepresentations. The important fact to be noted is that the Board had faith in Quary. He was in high favor with the members and they listened with gravity to his suggestions and to the information which he gave. B. T. Journal, vol. 15, minutes for June 26, and succeeding dates, 1703, “I attended the Governor Colonel Winthrope, who received me very kindly and desired me not to look too narrowly into the mistakes of that government. I quickly found that there was good reason for that caution for on examining the custom-house I found nothing but confusion and roguery. I was apprised of many dishonest practices acted in that place before I went but did not expect to have found matters so very bad. The person that acts as collector was one Mr. Withred, a pillar of their church, but a great rogue, for there is no villainy that a man in his post could do but was constantly practiced by him. . . . It would tire your Lordship to give you a history of the illegal trade carried on and encouraged in this government from Curacoa, Surinam and other places. . . . This is a very populous country, able to raise 10,000 effective men and yet would never assist their neighbors in defending their frontiers from the public enemy, who hath destroyed whole towns and carried away the inhabitants for want of a regulated government and militia. . . . I have no hope of preventing illegal trade in that government whilst it is in the hands of those people.” B. T. Papers, Plantations General, Entry Book, D. ff. 200-205.

Memorial from Mr. Stephen Gauden, relating to the misfeances of Carolina and other Proprietary Governments, whereby they Forfeit their Charter.” July 25, 1716. B. T., Proprieties, Q. 81.

[2 ]B. T. Journal, 25, f. 216, Aug. 11, 1715.

[3 ]B. T. Papers, Proprieties, Entry Book, F. ff. 464-465.

[4 ]This may be inferred from Gauden’s Memorial: “The committee appointed by the Parliament . . . seemed somewhat at a loss how to fix proper causes and reasons for the doing” [of that for which they were appointed].

[1 ]“Letter from the Governor and Company of Connecticut relating to the surrender of their charter to the Crown by G. Saltonstall to Mr. Jer: Dummer, their agent, dated Oct. 28th, 1723, from N. Haven.” B. T. Papers, Proprieties, R. 49.

[1 ]The decree is printed in full in Conn. Col. Rec. VII, Appendix. Mass. Hist. Soc. Collections, 6th ser. vol. V, pp. 496-506. It will be impossible to give here even an outline of the facts of the case. See Talcott Papers, I, pp. 94 note, 187, 241. Mass. Hist. Soc. Proc., March, 1893, pp. 125-127. Conn. Col. Rec., VII, p. 572 ff. That there was considerable justice in Winthrop’s position becomes evident when we know of the contents of Wait Winthrop’s will and of Lechmere’s impecunious condition. Mass. Hist. Soc. Collections, 6th ser. vol. V, pp. 367 (note)-370; also Winthrop’s letter to Cotton Mather, pp. 425-428. The most detailed account of the case is to be found in the same volume, pp. 440-467.

[2 ]Talcott Papers, II, pp. 77-78, 136. Conn. Col. Rec., VII, p. 191 note. State Archives, Miscellanies, II, doc. 313.

[1 ]Talcott Papers, II, p. 77.

[2 ]Govr. Talcott recognized the unfairness of the decision from the standpoint of equity, when he said in a letter to the Board of Trade Nov. 4, 1731, “Your Lordships will be best informed of the reason, necessity and usefulness of our laws by considering the state and circumstances of our country so many ways differing from that of England.” B. T. Papers, Proprieties, S. 36. Talcott Papers, I, p. 250; II, p. 225. It is worthy of notice that Winthrop’s own counsel declared against the judgment of the Council afterwards. Talcott Papers, II, p. 72.

[1 ]Talcott Papers, I, p. 234.

[2 ]Talcott Papers, I, p. 146.

[3 ]Ibid., I, pp. 122, 146.

[4 ]In the Middletown Mss. Proprietary Records there is “An Account of the Interest of the Several Proprietors of the Common and Undivided Lands [computed] according to the Custom of Deviding Intestates in the Colony of Connecticut.” Dec. 28, 1733. A study of the lists herein contained shows graphically the practical working of the intestacy law. In 1673 a list of proprietors had been drawn up, 52 in number, with real estate “rights” in the undivided lands ranging from £224 to £24. In 1733 this list was revised, and it was found that by constant subdivision of “rights” through purchase, bequest and intestacy settlement, the number of proprietors had increased to 328, the number of “rights” to 386 (circa) ranging in value from £103 to 9sh. with by far the greater number valued at less than £5. An examination of such lists proves how impossible it would have been to carry out the Order in Council voiding the law. The Middletown proprietors paid no attention whatever to the king’s decree.

[5 ]Talcott Papers, I, 177. It is not unlikely that considerable trouble might have been caused had this feature of the case been brought to the attention of the authorities at home. It might have been decided in favor of the Patentees if we may judge from the legal opinion of Attorney-General Northey, Aug. 7, 1703, upon an Act of New Hampshire for Confirmation of Town Grants, “it is fit that same be repealed for that it confirms all grants of lands that have heretofore been made unto any person or persons by the inhabitants of the respective towns within that Province or by the selectmen or a committee in each Town without having any regard to or saving of the right of any persons who might be entitled to the same before the making such grants.” B. T. Papers, New England, M. 46.

[1 ]Talcott Papers, I, p. 177.

[2 ]Ibid., I, pp. 122, 146-147.

[3 ]Ibid., I, pp. 144, 189, 234.

[4 ]Ibid., I, p. 147.

[1 ]Talcott Papers, I, pp. 147, 189; II, pp. 245-248.

[2 ]Ibid., I, p. 123.

[3 ]Ibid., II, p. 246.

[4 ]Ibid., II, p. 79, Mass. Hist. Soc. Proc., 1860-62, p. 72-73.

[5 ]Talcott Papers, I, pp. 153-154. pp. 77-85. Governor Talcott says that the law had been sent over with other laws “some thirty years ago,” by Gov’r Winthrop and that as nothing was said about the law then the colony had reason to think itself safe. There is a mistake here somewhere; the law was passed in 1699 and Gov’r Winthrop sent over the Book of Laws as an enclosure in his letter of Oct. 27, 1698. B. T. Papers, Proprieties 2A. It may be that he is referring to the October order as revised in 1673.

[1 ]Talcott Papers, I, pp. 174, 249.

[2 ]Ibid., I, pp. 200-201. B. T. Papers, Proprieties, R. 108.

[3 ]Talcott Papers, I, p. 393. Dudley in his letter to the Board of Trade expresses this view. “On the part of the Crown it would be provided [in case a union of colonies was affected] that the laws of England, common and statute, which have hitherto always been or ought to have been the laws of all those provinces, should be so declared and the government there directed to present to the King not Magna Charta or chapters of capital laws, but such by-laws as the several provinces in their settlements require, which are not provided for by the common and statute law of England.” B. T. Papers, New England, vol. 7, F. 13. For Dudley’s motives see Palfrey IV, pp. 367-368. Bulkeley said in his “Will and Doom,” “We think that the colony of Connecticut is de Jure (we wish we could say de facto) as much subject to the Crown of England as London or Oxford.” Again, “forgetting . . . that their Courts are but inferior Courts and their laws not laws properly so called or parcel of the Laws of England but only By-Laws, i. e. the Local, private and particular orders of a corporation.”

[1 ]Talcott Papers, I, p. 274.

[2 ]Ibid., I, pp. 149, 158.

[3 ]Blancard v. Galdy, Salkeld’s Reports, I, p. 411. Talcott Papers, I, p. 144; II, Appendix, “Instruction to Agent.”

[4 ]Talcott Papers, I, p. 148.

[1 ]“The common law always hath its limits environ’d by the sea.” Talcott Papers, II, Appendix, “Instructions to Agent,” p. 492.

[2 ]Ibid., II, Appendix, “Instructions to Agent.” These instructions were drawn up by John Read and not by Talcott, II. 489 note.

[3 ]Ibid., I, p. 149.

[4 ]Ibid., I, p. 159; II, Appendix, “Instructions to Agent.”

[5 ]Ibid., I, p. 152.

[1 ]B. T. Papers, Proprieties, M. 49. See also Talcott Papers, I, p. 154. Gershom Bulkeley says much the same in his “Will and Doom,” but facts come to us from his pen strangely distorted, while his arguments are full of pedantry and bitterness. “The case is otherwise with us, their Majesties are not yet received to reign in Connecticut, their laws are of no force or effect here.” . . . “The abolition of the Common and Statute laws of England and so of all humane laws, except the forgeries of our own popular and rustical shop . . . A strange fancy that coming over from England to another of the King’s dominions we should so far cease to be his subjects as that the laws of our King and Nation should not reach us.” The most recent legal decision affecting our subject is that of Justice Baldwin in “Campbell’s Appeal from Probate,” 64 Connecticut Reports, 1894. He held that the Connecticut rule of inheritance, differing fundamentally from the rule of England, had been the uniform doctrine of the Connecticut courts (p. 290); and he gave it as his opinion “that the common law rule of the exclusion from inheritance of all tracing their descent through uninheritable blood was never in force in Connecticut” (p. 292). His decision is both historically and judicially sound.

[2 ]Talcott Papers, I, p. 121. It was Jonathan Law who in 1731 drafted the “Act for the Settlement of Intestate Estates,” which was to take the place of the old Act. It excluded females from the inheritance, but admitted the younger sons to inherit with the eldest son, as co-heirs. This did not better matters at all for it was equally contrary to the common law of England with the older Act. State Archives, Civil Offices II, doc. 169. Foreign Correspondence II, doc. 146. See Wilks’s remarks upon this Act. Talcott Papers, I, p. 241.

[1 ]Talcott Papers, I, pp. 149-150.

[2 ]B. T. Papers, Proprieties, R. 130. Aug. 1, 1730.

[3 ]Talcott Papers, I, p. 238. II, Appendix. “Instructions to Agent,” p. 493.

[4 ]Ibid. I, p. 152, Winthrop’s 8th Complaint. II, pp. 75-76, Parris’ Opinion.

[5 ]“Copy of a Representation of the Board of Trade to the House of Lords” Jan. 23, 1733-34. British Museum, 8223 e-15. Mentioned by Wilks, Talcott Papers, I, p. 294. In 1760 the Board took a different view “supporting his Majesty’s right to examine into every provincial law and to give or to withhold his negative upon any good reasons which may be suggested to him by the wisdom of his Privy Council or by his own royal prudence and discretion.” B. T. Papers, Proprieties, Entry Book, I, ff. 299-307; Cf. opinion of House of Lords, 1734, Talcott Papers, I, p. 297.

[1 ]“Mr. West’s Report relating to the Admiralty Jurisdiction practiced in the Plantations.” June 20, 1730. B. T. Papers, Plantations General, L. 10.

[2 ]Fane evidently took it for granted that the Connecticut laws could be repealed by the King in Council. It is not probable that the Board had instructed him on that point.

[1 ]The following is an analysis of the report:

There are in the list 387 Acts and 3 Resolutions. Of the Acts 312 are good, proper, well contrived for the purpose intended, reasonable, containing nothing amiss, fit to be confirmed, open to no objection or agreeable to the conveniences of the colony, and 75 are open to objection and should be repealed. Of the latter 28 are too severe or unreasonable, 2 are not severe enough, 9 are too loose, inexact, or uncertain, 6 give too much power to the selectmen, the county court or the court of assistants, 3 omit certain necessary definitions or limitations of the corresponding English law, 7 are different from the law of England and for the object intended inferior to the English law, 2 are incomplete in themselves, 9 concern Bills of Credit, 3 the intestate law, 5 are good in part and 1 has been repealed. It would be worth while as a commentary upon Gershom Bulkeley’s “Will and Doom” to compare his partisan arraignment of the Connecticut laws with the judicial criticisms of Francis Fane.

[2 ]“Francis Fane on the Connecticut Laws.” B. T. Papers, Proprieties, V. 19-27.

[1 ]The order of events may be briefly given. The petition was sent to the King in February, 1730; it was referred to the Committee on Appeals Apr. 10, and to the Board of Trade Apr. 15. The Order in Council and the Petition were read before the Board Apr. 21, and the letter of inquiry was sent to the Crown lawyers the next day. The Memorial of Winthrop in reply to the Petition was received and read on the 28th, and was sent to the Crown lawyers two days after. On the 13th of May, the Crown lawyers not having replied, a letter was sent to remind them of the Board’s request. Finally, on Aug. 1, they replied and their report was read Aug. 13, when the preparations for the representation to the Committee of the Council were begun: a draught of the representation was ordered on Nov. 12, and on the 18th a letter with the Petition and the Memorial was sent to Francis Fane. He replied on the 21st and his report was read on the 24th and the work upon the draught was continued. On Dec. 2, the agents, Dummer and Wilks with Winthrop, were summoned before the Board, and appeared and presented their case on Friday, the 4th. On the 8th the draught of the representation was agreed upon, and on the 31st it was signed. B. T. Papers, Proprieties, Entry Book, H, ff. 10-11, 23, 39. Journal, 40. ff. 90, 97, 104, 111, 209, 221, 295, 299, 303, 312, 316, 322, 339.

[2 ]B. T. Papers, Proprieties, R. 108. I have used the copy of the petition sent down from the committee to the Board of Trade, instead of the transcript enclosed by Belcher in his letter to Talcott, Feb. 10, 1730, and printed in the Talcott Papers, I, pp. 187-190.

[3 ]Talcott Papers, I, pp. 167-168.

[1 ]Talcott Papers, I, pp. 175-179. The history of the relations between Parliament and the proprietary and charter colonies since 1701 shows the accuracy of Talcott’s judgment. The representation of the Board of Trade upon the petition, the resolution of the House of Lords and the revival of the effort to introduce a bill into Parliament in 1731 to unite Connecticut and Rhode Island (Talcott Papers, I, p. 221) were a speedy fulfilment of Talcott’s fears. There is history here to be written. See Judge Chamberlain’s remarks, op. cit., pp. 131-133.

[2 ]The petition upon which the Board based its representation contains the words “pray your Majesty to be pleased by your Order in Council to confirm,” the petition which Belcher enclosed to Talcott says “pray that you would be pleas’d to give leave that a bill may be brought into this present Parliament of Great Britain to confirm.” It is evident that the latter was the form originally intended to be used (Talcott Papers, I, pp. 184, 191). But probably Talcott’s fears of Parliament, and particularly the pressure of more weighty matters upon Parliament just at that time, induced a change, and the petition was altered and request for a confirmation by Order in Council inserted instead. (Ibid., I, p. 197.)

[3 ]B. T. Papers, Proprieties, R. 132.

[4 ]Talcott Papers, I, pp. 167, 168, 184, 259.

[1 ]The minute in the Board of Trade Journal is as follows: “Mr. Dummer and Mr. Wilks attending, as they had been desired with Mr. Winthrop, their Lordships desired to know from them how the colony of Connecticut would be affected by the annulling the Act for settling intestate estates. And Mr. Dummer acquainted the Board that the colony would be reduced to the utmost confusion if their estates as they now hold them should not be secured to the present possessors, their tenures being liable to be reversed or at least to be disputed in a manner that cannot fail to be expensive and vexatious. Upon the withdrawal of these gentlemen their Lordships agreed to consider the matter further at another opportunity.” B. T. Journal, 40, f. 316. It is a little remarkable that the clerk of the Board makes no mention of Winthrop’s speech, for in Wilks’s report of the interview we are told that he spoke at some length. Talcott Papers, I, pp. 217-218. Perhaps Mr. Winthrop had overreached himself. (Ibid., pp. 166, 171.)

[2 ]Judge Chamberlain says that this recommendation of the Board marks a changing constitutional policy in the direction of parliamentary supremacy over the colonies which finally led to the severance of the empire. Op. cit., pp. 134, 136.

[1 ]B. T. Papers, Proprieties, Entry Book, H. ff. 25-27. Cf. Wilks’s statement in Talcott Papers, I, pp. 217-219, 222.

[1 ]See the representation of 1733 and the resolution of the House of Lords (Talcott Papers, I, p. 297), where strong language is used. Wilks reports a speech made one day in the House of Lords to the same effect (Ibid., I, pp. 294-295). The opinion of intelligent Englishmen can be inferred from an extract from Salmon’s Modern History published in 1739. “The laws [of the charter governments] are liable to be repealed and their constitution entirely altered by the King and Parliament; which, one would think, should render them extremely cautious in making laws that may prove disadvantageous to their mother country . . . for they may very well expect that when this shall be done to any great degree the Parliament will keep a severe hand over them and perhaps deprive them of their most darling privileges. It may be found expedient hereafter also for their own defence and security to appoint a viceroy or at least a Generalissimo in time of war . . . Or at least it may be found necessary to make all the colonies immediately dependent on the Crown, as Virginia, Carolina and New York are: for the charter governments are not to be depended on in such exigencies.” Modern History by Mr. Salmon, III, p. 568 (London, 1739).

[1 ]For the case of Phillips vs. Savage see Mass. Hist. Soc. Proc. 1860-1862, pp. 64-80, 165-171.

[2 ]The proceedings of the Privy Council upon the appeals of Clark and Tousey are to be found in Conn. Col. Rec. IX, pp. 592-593.