The Rule Of Law In Colonial ConnecticutPosted: December 30, 2012
What, if anything, do Connecticut’s earliest legal documents have to say about the rule of law and its relationship to an orderly society? Let’s start with a document known as the Fundamental Orders, adopted on January 14, 1639 (or perhaps 1638 according to some sources). The phrase “Constitution State,” which we see so often on the license plate of the car in front of us, is based on the notion–accepted by some, disputed by others–that the Fundamental Orders represent the first written constitution in the western world. The Orders (of which there were eleven) established a formal confederation among the towns of Windsor, Wethersfield and Hartford and set forth a form of government. However, it is the introductory paragraph, a preamble of sorts, that explains why a government is desired:
For as much as it hath pleased Almighty God by the wise disposition of his divine providence so to order and dispose of things that we the Inhabitants and Residents of Windsor, Hartford and Wethersfield are now cohabiting and dwelling in and upon the River of Connectecotte and the lands thereunto adjoining; and well knowing where a people are gathered together the word of God requires that to maintain the peace and union of such a people there should be an orderly and decent Government established according to God, to order and dispose of the affairs of the people at all seasons as occasion shall require; do therefore associate and conjoin ourselves to be as one Public State or Commonwealth; and do for ourselves and our successors and such as shall be adjoined to us at any time hereafter, enter into Combination and Confederation together, to maintain and preserve the liberty and purity of the Gospel of our Lord Jesus which we now profess, as also, the discipline of the Churches, which according to the truth of the said Gospel is now practiced amongst us; as also in our civil affairs to be guided and governed according to such Laws, Rules, Orders and Decrees as shall be made, ordered, and decreed as followeth:
Clearly, the Fundamental Orders did not recognize any difference between religious and secular law. But they did recognize that some type of government was necessary to “maintain the peace and union of” people living together, and that an “orderly and decent government” is necessary to “order and dispose of the affairs of the people.” And to the point of this post, the Orders explained that the newly established government shall make “laws rule orders and decrees” to guide and govern civil affairs.
Let’s jump ahead a few years, to the adoption of the Code of 1650, also known as Ludlow’s Code after its author, Roger Ludlow, an early Connecticut colonist and perhaps the only one educated as a lawyer. Like the Fundamental Orders, the Code of 1650 recognizes that a government of laws is necessary for an orderly society. But the Code goes further and makes clear that certain basic substantive rights, beyond the existence of government itself, are necessary to ensure the liberties, immunities and privileges of every man (sorry ladies):
Forasmuch as the free fruition of such Libberties, Immunities, Privileges, as Humanity, Civillity and Christianity, call for, as due to euery man in his place and proportion, without Impeachmt and infringement, hath euer beene and euer will bee the Tranquillity and Stabillity of churches and Common wealths, and the denyall or deprivall thereof, the disturbance if not ruine of both:
It is therefore ordered by this Courte and Authority thereof, that no mans life shall bee taken away, no mans honor or good name shall bee stained, no mans person shall be arrested, restrained, banished, dismembered nor in any way punished; no man shall bee deprived of his wife or children, no mans goods or estate shall bee taken away from him, nor in any wayes in-damaged, vnder colour of Law or countenance of Authority, vnless it be by the vertue or equity of some express Law of the Country warranting the same, established by a Generall Courte, and sufficiently published, or in case of the defect of a Law in any perticular case, by the word of God.
Does this language sound familiar? It should. Judge Henry Cohn, who has written extensively on the early legal history of Connecticut, suggests that Ludlow borrowed this language from the Massachusetts Bay Body of Liberties. See Cohn at IV. Others disagree (see J. Taylor at 99) and trace the language in both documents to a much earlier one drafted in 1215, the Magna Carta, specifically clause 39 thereof, in which King John of England promised that “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”
In 1354, Parliament adopted a statute incorporating King John’s promise, but substituted for the phrase “law of the land” a new phrase that should be familiar to all: “No man … shall be put out of land or tenement, or arrested or imprisoned, or disinherited, or put to death, without being brought in answer by due process of law.” (Emphasis supplied.)