History of The Connecticut Constitution - Separation of Powers From 1639-1818

Separation of Powers From 1639-1818

Prior to the implementation of the first official constitution in 1818, Connecticut’s government had no separation of powers. The legislative body, the General Court, began as a one house legislature that wielded supreme authority. Although the General Court split in 1698 and was renamed the General Assembly, it continued to enjoy dominance over the executive and the judiciary until 1818. After the split, the General Assembly consisted of two houses, the Council and the Assembly. The Council, the more powerful of the two houses, consisted of the ex officio governor and lieutenant governor and twelve elected assistants. The twelve assistants were not selected from particular jurisdictions, but rather represented the state at large. The Council varied in number up to 200 members, with each town sending either one or two representatives.

Aside from an automatic position on the Council, the position of governor was highly symbolic. The executive had no power of pardon and no ability to veto bills passed by the General Assembly. Under the Fundamental Orders, the maximum term for the governor was two years and he could not succeed himself. For many years, John Haynes and Edward Hopkins took turns with the position, each serving a two year term and then rotating back to the role of lieutenant governor. The primary responsibilities of the governor were as an official statesman and a member of the legislature. Before the split into two houses, the governor acted as the moderator of the General Court. Afterwards, he held the spot on the Council. The impotence of the governor was subject to the important exception of the Revolutionary War, during which time his position as commander-in-chief of the state militia rendered the office extremely importance.

Perhaps the least influential branch of government under the Fundamental Orders was the judiciary. Until 1818, the legislative branch was the court of final resort in the state, holding appellate jurisdiction over all lower courts. If a litigant was dissatisfied with the court’s decision, he simply had to go to the legislature to request review. This often led to circumstances where a representative or assistant sat in review of a case in which he was personally interested, either as an attorney, litigant, or friend of one of the parties. When it became too burdensome for the entire assembly to handle appeals, the Supreme Court of Errors was created in 1784. Instead of being composed of the entire assembly, only the members of the Council sat as the Supreme Court of Errors. This change failed to alleviate many of the conflict of interest problems inherent in the appellate process.

Under political pressure, the General Assembly changed the makeup of the Supreme Court of Errors in 1806. Members of the Council no longer sat on the court. Instead, the nine Superior Court judges acted as the Supreme Court of Errors when all of them sat together. While this created a judicial body, the General Assembly still retained the power to reverse decisions of the court. It also resulted in the constant situation of a Superior Court judge sitting in review of a case he had presided over at the trial level.

The most infamous example of legislative interference with the courts occurred in 1815. In that year, Peter Lung was convicted of murder and subsequently sentenced to death. After Lung filed a petition with the General Assembly, his conviction was overturned. It is believed that Mr. Lung’s political influence largely contributed to his conviction’s reversal by the legislature. Upon retrial, the court promptly convicted and executed Mr. Lung. Lung’s Case outraged all Connecticut judges, most notably Chief Justice Zephaniah Swift, who spoke out for judicial independence in a pamphlet the following year. Establishment of an independent judiciary became one of the central rallying cries in support of a new constitution.