I find it almost impossible to walk away from a fight, which explains, I suppose, my choice of vocation. Trying cases is one of the few places left in which a hired gun can take aim and fire. So I am still grumbling about Occupy New Haven and the Committee of Proprietors of Common and Undivided Lands in New Haven.
You see, colonial settlers "purchased" the land on which all of New Haven and several surrounding towns sit from local sachems in 1639 for an assortment of coats, axes, knives and other sundries. These settlers then formed a community, a theocracy of sorts. If the original settlers and title holders to all that land liked your theology, you could ask for some land. They’d give it to you. Over the years, they distributed most of the land to like-minded souls.
Over time, title passed from this group to individuals for almost all of the land in New Haven. Today, only the 16-acre Green in the center of the city remains in the hands of a group claiming lineal descent from the colonists. But this group is hardly composed of settlers’ progeny. It is a private, largely secret group calling itself the Committee of Proprietors of Common and Undivided Lands in New Haven. It owns the Green.
It also makes rules regarding the Green’s use.
Membership in this secret society is a matter of invitation. There are five people on the committee, which is chaired by Drew Days, former solicitor general of the United States, and professor emeritus at the Yale Law School. United States District Court Janet Bond Arterton is also a member. They enjoy lifetime appointment to this committee. When a member of the committee dies or loses interest, the remaining members select a new member.
Just how this voluntary association came to own the Green is a quirky bit of history. In the early eighteenth century, the proprietors met as a committee and held periodic meetings to review land transfers. Their work was endorsed by the colonial General Assembly.
By the nineteenth century, some 160 years after the "purchase" of lands from the Indians, lineal descendants of the original setters were scattered across the face of the earth. Such descendants as could be found created the five-member committee that to this day claims ownership of the Green. In 1810 and then again in the 1830s, the Connecticut General Assembly recognized the rights of the Committee to dispose of land and to hold title to land.
I believe that only one of the current proprietors is a descendant of the settlers who acquired title to the land. She is Ann Calabresi, the distant descendant of Theophilus Eaton, the first-named settler on the Indian deeds and the first magistrate selected to govern the colony by fellow churchmen who all agreed that the Bible was the only source of law. She is the wife of Guido Calabresi, former dean of the Yale Law School and now a judge on the United States Court of Appeals for the Second Circuit.
It amazes me that such a committee in the twenty-first century claims title to a piece of property on which no taxes are paid, which is maintained by the City of New Haven, and is regulated on a day-to-day basis by the city’s Department of Parks, Recreation & Trees. What is even more amazing is that the City recognizes the right of the Proprietors to resolve disputes about use of the Green. I cross-examined both Drew Days and the Director of New Haven’s parks department the other day. If someone is denied a permit to use the Green, why they get to take an appeal to the private Proprietors. It’s as though Skull and Bones suddenly acquired veto power over school menus.
Our state constitution prohibits the state from conferring "hereditary privileges," a provision that appears never to have been tested in the courts. The legislative recognition of the rights of this secret society to hold title to the Green together with the power to regulate its use looks like a hereditary privilege to me. If you get a tap from the secret society of colonial proprietors, you get to hear appeals about how the town’s Green is used. It is bizarre, I tell you.
District Court Judge Mark Kratvitz did not seem to find this as shocking as either I or my clients do. He will soon rule on whether the City of New Haven has the right to remove protestors camping out on the Green. The protestors have been there since October 15, 2011. We’ve asked him to certify the question of whether the Proprietors’ privileges violate the state constitution. I suspect the court will decline that invitation.
I always thought this was a republic. That power sprang from the consent of the governed. I now come to find out in New Haven that power is a matter of private and secret right, passed down from generation to generation by means of a club neither I or my clients will ever have the right to join and having as its source an acquisition of land by means of a purchase as dubious as the purchase of Manhattan by the Dutch for trinkets.
Colonial history is alive and well on the Green in New Haven, long after the principles that sustained it have largely vanished from the face of the earth. I just can’t get over that. It makes me want to keep fighting. Call me Quixote.