Early Connecticut Laws II
Bill Long 7/31/09
Examples from the Code of 1650
I had been brought up to think of the earliest CT code of laws as a rigidly Puritan document dripping with Scriptural references and linking all life to Old Testament models. There are, indeed, references to God throughout, and there also are moral prohibitions which we might find strange today (see below on the section on "Idleness"), but most of the document is quite secular and would have easily been recognized as "good English law" by anyone nurtured in the common law tradition. These three essays explore some themes of the Code of 1650, focusing on the precise language of both its secular and religious provisions.
Leading Ideas; Common Ideas
Lest we think this is a document written to those focused on the Heavenly Jerusalem, we should recognize that the two longest sections of this 120+ page document consider Indians and Military Affairs. That indeed, was the reality of the people of Connecticut. The laws reflect a lot of confusion about how best to deal with the Indians. Is harshness or lenity a better policy? Hear some words:
"Forasmuch, as our lenity and gentlenes towards indians, hath made them growe bold and insolent to enter into English mens howses and unadvisedly handle swords, and peeces, and other instruments, many times to the hazzard of limbs or lives of English or indians; and allso, oft steale diverse goods out of such howses...(a penalty of a "fathom of wampum" is assessed against the guilty Indians)."
Much more could be said about the Indians. Indeed the great Pequot War broke out just before these words were penned (1637); certainly that experience colors whatever is said about Indian relations and Military Affairs.
Despite the reality of the Indian presence and perceived threat, the colonists found time to pass laws very familiar to the common law of England. Take these two "dull ones," for example:
"ESCHEATS. It is ordered by this Courte and authority thereof, That where no heire or owner of hwses, lands, tenements, goods or chattells, can bee found, they shall be seized to the publique treasury, till such heirs shall make due clame thereunto..."
This is a typical escheat provision from the common law, which still is preserved in our statute law today.
"PEAGE (who has heard of this word?). It is ordered by this courte and decreed, That no peage, white or black, bee paid or recieved, but what is strunge, and in some measure, strunge sutably, and not small and great, uncomely and disorderly mixt, as formerly it hath been."
What is peage? According to the OED, it is the same as pedage and means, "A toll paid for passing through a place or country." But what is "white peage?" I don't know, but you can see how way leads to way...*
[*Reader Duane Maycock sent this helpful note: "I think the word Peage refers to penny or pence. The paragraph is referring to how to receive Indian shell money, which was kept on a string, and was either white or black. Six white ones were equal to a penny. Three black ones were equal to a penny."]
Other examples of this kind can be multipled. Perhaps 40 of the 100 or so paragraphs in this code deal with mundane issues that are handled in the way the English common law would handle them (such as dealing with fraudulent conveyances; rules of testamentary capacity; building of fences between properties, etc.).
Moral Condemnation/Guidance--Beginning with School
The Code did reach into the moral lives of individuals, however, in areas of child-rearing/education, lying, idleness and fornication, among other areas. The selectmen of every town "shall have a vigilent eye over theire brethren and neighbours." Why?
"To see, first, that none of them shall suffer so much barbarisme in any of their families, as not to indeavor to teach by themselves or others, theire children and apprentices, so much learning as may inable them perfectly to read the English tongue, and knowledge of the capitall lawes, uppon penalty of twenty shillings for each neglect therein..."
It should be noted that this law is identical to the first MA school law, from 1642. We don't know the precise date of the Ct law, but I believe most scholars argue for the priority of the MA law
Another section of law, under the heading "Schooles," is identical to the 1647 MA school law. Here we are introduced to "that old deluder, Satan," whose goal it is:
"to keep men from the knowledge of the Scriptures.."
Satan has done this skillfully by keeping knowledge of the biblical languages from people's education; the law seeks to repair that by requiring towns or gatherings of people over a certain size to hire a teacher to teach the youth how to read and write. As I reflect on it, however, it seems that the preamble of the law demands too much. If indeed Satan is at work keeping knowledge of the original meaning of Scripture from people, because the original is locked away in strange language, wouldn't the goal be to set up Hebrew and Greek academies? Well, in any case, we have the origin of schools in America in these laws.
Now, let's turn to some really juicy laws.