For the first few years the colonists depended on parental enforcement and frequent sermons to assure compliance with the laws. When these tactics proved insufficient, public shame was utilized, with English stocks and pillories. As long as corporal punishment was the norm, with the death penalty as the ultimate retribution through the end of the eighteenth century, any extensive use of jails was unnecessary. Capital punishment was actually used sparingly, applied only for murder, treason, and, for a brief time, witchcraft. Connecticut, not known for breaking new ground very often, focused on strengthening the moral fiber of its members against the devil.
Hartford was the setting for the first person executed in the colonies for witchcraft. Eleven people (ten women, one man) were convicted as witches in the Connecticut Colony between 1647 and 1663. All were hanged. The convictions of three more, charged in 1665, 1668, and 1692, were reversed.3
The difference was the demand by Connecticut governor John Winthrop Jr. and a colleague, Gershom Bulkeley, that Connecticut abide by the rule of law that required confirmation of witchcraft by independent witnesses rather than emotional testimonies of those making the charges. Both men were steeped in the new scientific worldview created by the Enlightenment, a viewpoint that was open to new ideas and that looked for evidence, not emotional conviction, in the search for justice and truth. The two also studied alchemy and other novel branches of science. Winthrop was in a key position to bring the witchcraft frenzy to a halt in Connecticut.4
The death penalty became increasingly problematic in the colonies. Memories of its overuse in England provided one deterrent. A second factor was the obvious evidence that the penalty did not stop the crimes when it was applied. A third was the solemn fact that repentance was impossible once the death penalty was administered. Even in the application of corporal punishments, the goal was to chastise the offender in the hope that conversion to a better life was achieved.
The Connecticut Colony also emulated the Massachusetts Bay court structure, electing a general court at the top of the legal hierarchy. County courts, created in 1668, were subordinate to the general court. The office of the magistrate (also called the justice of the peace in England) was a local official, not necessarily an attorney, in the cities and towns and was at the bottom of the hierarchy. Decisions in many instances could be appealed to the general court, which had the final say. In 1638 the general court established a particular court in Connecticut to be the principal judicial body of the state.
Sixty years later the general court was renamed the Connecticut General Assembly and the modern terminology of the separation of powers was initiated. In 1662 Gov. John Winthrop Jr. used his ability to persuade his personal and family contacts in England to obtain a charter for Connecticut that gave the state almost complete freedom to govern itself, a unique situation among the thirteen colonies. Based on that charter, two new levels of courts were established: the court of assistants in 1665 and the county courts three years later. Separate probate courts were established in 1698 to handle such matters as wills and estates. A superior court was established in 1711. A supreme court of errors was established in 1784 and was renamed the Connecticut Supreme Court in 1965.
Connecticut became notable in several ways during its first two centuries. One was the voting power delegated to “freemen,” as Christian homeowners were called at the time. Only Connecticut (plus Rhode Island), of the original thirteen colonies, elected their governors rather than having them appointed by the representatives of the king and still had all the power of the king behind their appointments.
All colonies, it is true, elected their delegates to their versions of the general court and general assembly, as well as their town leaders. But the free election of their top leader, under the conditions granted him by the voters, gave to Connecticut an impetus to model democracy at all levels of government. It was out of this context that the Fundamental Orders were written, specifying that the citizens of Connecticut were freely associating themselves to be “one public state or commonwealth.”5 A second notable peculiarity was the stress laid by Rev. Thomas Hooker on the indispensable value of voluntary associations. In Bradley Chapin’s words, “In Connecticut he became the firm, articulate spokesman” of that concept.6
The Fundamental Orders were based on the vitality and potential of voluntary association. The idea spread throughout the expanding nation in the following decades. Connecticut, however, provided a prime example of people consciously and intentionally forming a government and subsequently other groups by free choice and voluntary consensus. Eventually, Connecticut’s delegates to the 1787 Constitutional Convention—Oliver Ellsworth, William S. Johnson, and Roger Sherman—played a key role in the writing and subsequent formation of the U.S. Constitution after the Revolution.
The first voluntary associations, therefore, were religious groups organizing to form a political government, along with religious groups, called churches, bonding around faith commitments without recourse to royal charter or a state church’s permission. In the nineteenth century there was an explosion of voluntary associations to pursue a multitude of social purposes. Eventually civic, financial, economic, reformatory, and other types of associations followed. The ongoing effect of such associations on the criminal justice system that evolved in Connecticut is a major theme traced through the following chapters.
MILESTONE 2: THE EMERGENCE OF CONNECTICUT’S JAILS
The jail emerged from the workhouse early in colonial history. Its role as a place not just for the alcoholic and the pauper fed a Puritan passion to control more serious immoral behavior by prompt and direct punishments. It was a passion rooted in the Anglican Christian tradition they had left behind and were seeking to make more effective in the Americas. Another motivating factor among the early colonists was the rational optimism of Enlightenment philosophies, which supported the radical idea that humanity is perfectible. It was an optimism that eventually made its peace with the Calvinist belief in original sin on the grounds that God’s grace could overturn even the most devilish human tendencies.7 This combination of reason with faith and scripture guided the Puritans as well as other immigrants in many parts of society. Establishing a just recompense for sinners was gradually fused with the idea of perfecting the human being, through punishment if necessary.
The logic of the workhouse, developed in England in the early nineteenth century, was equally persuasive in the Americas, but it posed several layers of dilemmas, which have never been fully resolved. If the workhouse disciplines were not systematically strict and harsh, the belief was strong that offenders would soon view it as an alternate way to avoid living on the streets. If the jail regimen were not even more stringent, what leverage would the workhouse master have over rebellious paupers? Finally, since the workhouse was supposed to be a very shameful experience, “what margin of shame was left for the jailbird?” Punitive conditions at every moment had to be imposed.8
The most powerful idea, however, governing the use of the workhouse, and the subsequent jail, was the association of punishment with hard labor. It was not a new idea. The Puritans had always held hard work up as way to praise the Creator, but its systematic application as an additional penalty to those arrested only gradually took hold in America. Connecticut passed legislation to construct a separate and deliberately punitive workhouse in 1727, and it was completed in 1730.
The Connecticut law was called “an act for restraining, correcting, suppressing, and punishing rogues, vagabonds, common beggars, and other lewd, idle, dissolute, profane and disorderly persons, and for setting them to work.” The long list of offenses included “subtil [sic] craft,” which apparently signified various unwelcome actions, such as gambling games, “jugling [sic], fiddlers, stubborn children and brawlers.” The master of the House