USA > Rhode Island > Providence County > Providence > History of the state of Rhode Island and Providence plantations, Vol. I > Part 18
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1650.
200
HISTORY OF THE STATE OF RHODE ISLAND.
CHAPTER VII.
1647-1651.
HISTORY OF THE INCORPORATION OF PROVIDENCE PLANTA- TIONS FROM THE ADOPTION OF THE PARLIAMENTARY CHAR- TER, MAY, 1647, TO THE USURPATION OF CODDINGTON, AU- GUST, 1651.
" THE Incorporation of Providence Plantations in the Narraganset Bay in New England," was the legal title under which the several settlements in Rhode Island were united by the terms of the patent. The origin of this charter we have already noticed. Its peculiar character deserves attention. It was very general in its provisions, and conferred absolute independence on the colony. The single proviso with which it was fettered, to wit that "the laws, constitutions and punishments, for the civil govern- ment of the said plantation, be conformable to the laws of England," was practically annulled in the same sen- tence by the subjoined words, " so far as the nature and constitution of that place will admit." Thus the people were left free to enact their own laws, for this qualifying clause in effect defeated the proviso. No charter had ever been granted up to that time which conferred so ample powers upon a community, and but one as free has ever emanated since from the throne of a monarch.
The other remarkable feature in this instrument con- sists, not in what it specified, but in what it omitted. The use of the word " civil," everywhere prefixed to the
CHAP. VII. 1647.
201
ORGANIZATION UNDER THE FIRST PATENT.
terms "government " or "laws," wherever they occur in CHAP the patent, served to restrict the operation of the charter VII. to purely political concerns. In this apparent restriction 1647. there lay concealed a boon of freedom, such as man had never known before. A grant so great no language could convey, for the very use of words would imply the power to grant, and hence the co-ordinate power to refuse. Here was the essence of the Rhode Island doctrine. They held themselves accountable to God alone for their relig- ious creed, and no earthly power could bestow on them a right they held from Heaven. Hence the expressive si- lence of the charter on the subject of religious freedom. At their own request their powers were limited to civil matters. Beyond this a silence more significant than language proclaimed the triumph of soul-liberty.
More than three years had elapsed since the patent was obtained, and for thirty-two months, since its recep- tion, it had served only as an apology for the self-consti- tuted governments of the several towns. The higher ob- ject for which it was designed could no longer be kept in abeyance. The necessity of union was daily becoming more apparent. So long as distinct organizations were maintained, a color of plausibility was given to the con- stant efforts of the neighboring colonies to impair its va- lidity. The difficulties in the way of consolidation were at length overcome. A General Assembly of the people was held at Portsmouth. Providence sent ten delegates to act for her. The records of Portsmouth and Newport do not show that any were chosen from those towns, al- though it is probable that this was done. Warwick was not named in the charter, and her records do not begin till after this Assembly, but she was admitted to the same privileges with the rest at the opening of the session.
This first General Assembly was in fact a meeting of the Corporators formally to adopt the charter, and then to organize a government under it. It was not simply a
May 19-21.
202
HISTORY OF THE STATE OF RHODE ISLAND.
1647. May 19-21.
CHAP. VII. convention of delegates but of the whole people. A ma- jority being present their acts were binding upon the whole, as is expressed in the opening of the Assembly, when, having first chosen Mr. John Coggeshall, Moderator, " It was voted and found, that the major part of the colony were present at this Assembly, whereby was full power to transact." The next step was to provide against the withdrawal of so great a number as to defeat the object of the meeting by putting a stop to legislation. For this purpose the number of forty was agreed upon, who, in case the rest should depart, were required to remain "and act as if the whole were present, and be of as full authori- ty." In the establishment of this compulsory quorum we see the germ of the representative system, which the increasing number of the colonists now rendered necessa- ry. The Assembly being thus organized, and the initia- tory steps taken to secure its permanence and authority, " It was agreed that all should set their hands to an en- gagement to the charter." The engagement is embodied in the preamble to the code of laws adopted at this time, and hence has no signatures. This was a safer course to pursue, as the other might imply that those only were bound by the charter who had given in their written con- sent. The Assembly then adopted the representative system, by ordering that "a week before any General Court, notice should be given to every town by the head officer, that they choose a committee for the transaction of the affairs there," and they also provide for a proxy vote in the words "and such as go not may send their votes sealed." After unanimously adopting a code of laws, which had been prepared previous to the meeting, for the government of the colony, they proceeded to elect by ballot the general officers, to continue for one year, or till new be chosen.
John Coggeshall was chosen President of the Province or Colony, with one Assistant from each town, viz. : Roger
203
MODE OF PASSING GENERAL LAWS.
Williams of Providence, John Sandford of Portsmouth, CHIAP. William Coddington of Newport, and Randal Holden of Warwick. William Dyer was chosen General Recorder, and Jeremy Clarke, Treasurer.
The mode of passing general laws was then prescribed, and deserves attention for the care with which it provides for obtaining a free expression of the opinions of the whole people. All laws were to be first discussed in the towns. The town first proposing it was to agitate the question in town meeting and conclude by vote. The town clerk was to send a copy of what was agreed on to the other three towns, who were likewise to discuss it and take a vote in town meeting. They then handed it over to a commit- tee of six men from each town, freely chosen, which com- mittees constituted " the General Court," who were to assemble at a call for the purpose, and, if they found the majority of the colony concurred in the case, it was to stand as a law " till the next General Assembly of all the people," who were finally to decide whether it should con- tinue as law or not. Thus the laws emanated directly from the people. The General Court had no power of re- vision over cases already presented, but simply the duty of promulgating the laws with which the towns had in- trusted them. The right to originate legislation was, however, vested in them to be carried out in this way. When the Court had disposed of the matters for which it was called, should any case be presented upon which the public good seemed to require their action, they were to debate and decide upon it. Then cach committee, on returning to their town, was to report the decision, which was to be debated and voted upon in each town ; the votes to be sealed and sent by cach town clerk to the General Recorder, who, in presence of the President, was to count the votes. If a majority were found to have adopted the law, it was to stand as such till the next General Assembly should confirm or repeal it. The jeal-
VII. 1647. May 19-21.
204
HISTORY OF THE STATE OF RHODE ISLAND.
CHAP. VII. ousy with which the people maintained their rights, and the checks thus put upon themselves in the exercise of the 1647. law-making power, as displayed in this preliminary act, May 19-21. present most forcibly the union of the two elements of liberty and law in the Rhode Island mind.
The " Court of Election " was appointed for " the first Tuesday after the fifteenth of May, annually, if wind and weather hinder not ; then the General Court of trials im- mediately to succeed." The manner and time of organ- izing monthly and quarterly Courts, was left to the town councils of Newport and Portsmouth to arrange within thirty days. From them had emanated the code of laws, and to them it was intrusted to perfect the means of en- forcing that code. Acts were passed regulating the pow- ers of the towns in specific cases, and requiring that six men, to compose a town council, should be chosen by each town at its next meeting. "The sea laws, otherwise called Laws of Oleron," were adopted "for the benefit of seamen upon the island," and two water bailies 1 were chosen for the colony. An anchor was adopted as the seal of the Province. Reciprocal duties with foreign na- tions, upon all imported goods, except beaver, were estab- lished, and they were prohibited from trade with the In- dians. A military system, very like the one adopted seven years before at Aquedneck, was ordered.2 No arms or ammunition were to be sold to the Indians under a heavy penalty. The remoter settlements were apportioned among the towns. Newport was to have the trading posts in the Narraganset country ; Portsmouth, the island of Prudence, and the people of Pawtuxet were allowed their choice to belong to Providence, Portsmouth or Newport. A letter was ordered to be sent to them to make their se- lection, and another to Massachusetts respecting her claim to jurisdiction over them.3 A form of engagement for the
1 John Cooke and Thomas Brownell. 2 Ante, chap. v. p. 145.
3 These letters cannot be found on the records of Massachusetts or Rhode Island.
205
RECIPROCAL ENGAGEMENT OF THE STATE TO ITS OFFICERS.
officers was adopted, and what in our day seems curious, CHAP but is not the less just, a form for "The reciprocal en- VII. gagement of the State to the officers" was agreed upon 1647. as follows :-
" We the inhabitants of the Province of Providence Plantations, being here orderly met, and having, by free vote chosen you to public office, as officers for the due administration of justice and the execution thereof, throughout the whole Colony, do hereby engage ourselves, to the utmost of our power, to support and uphold you in your faithful performance thereof." The clerk of the As- sembly represented the State in giving and receiving these engagements.
A tax of one hundred pounds was levied, as a free gift to Mr. Roger Williams, for his labor in obtaining the char- ter. Of this Newport was to pay one-half, Portsmouth thirty, and Providence twenty pounds. By this appor- tionment it appears that Newport had rapidly advanced in wealth. Although the latest settled, she was already equal to the two older towns, and the island embraced four-fifths of the strength of the Province. Warwick was too weak as yet to bear any part of the burden.
The preamble and bill of rights, prefixed to the code of civil and criminal law adopted at this time, is a re- markable production. Brief, simple and comprehensive, the preamble asserts in a few words the two cardinal doc- trines of the founders of Rhode Island. It declares "that the form of government established in Providence Plan- tations is Democratical, that is to say, a government held by the free and voluntary consent of all, or the greater part, of the free inhabitants." This position was no less novel and startling to the statesmen of that day, than was the idea of religious freedom, which, in the next enact- ing clause, it carefully guards. Both of these principles were exclusively Rhode Island doctrines, and to her be- longs the credit of them both. This first General Assem-
May 19-21.
-
206
HISTORY OF THE STATE OF RHODE ISLAND.
CHAP. VII. bly aimed to adopt a code that should secure each of these objects, and thus be " suitable to the nature and consti- 1647. tution of the place." They succeeded ; and we hazard May 19-21. little in saying that the digest of 1647, for simplicity of diction, unencumbered as it is by the superfluous verbiage that clothes our modern statutes in learned obscurity ; for breadth of comprehension, embracing as it does the foun- dation of the whole body of law, on every subject, which has since been adopted ; and for vigor and originality of thought, and boldness of expression, as well as for the vast significance and the brilliant triumph of the princi- ples it embodies, presents a model of legislation which has never been surpassed.
The bill of rights embraces in concise terms, under four distinct heads, the fundamental principles of all our subsequent legislation. In the first it re-enacts a clause of Magna Charta guaranteeing the liberty and property of the person, and guards against constructive felonies, which at that time were sapping the foundations of Eng- lish liberty, by restricting criminal suits to violations of the letter of the law. In the second it prevents the as- sumption or the abuse of delegated power, by forbidding any to hold office who are not lawfully called to it, and re- quiring those who are, to perform neither more nor less than their proper duties. These two heads secure the rights of individuals against the government. The third protects the right of minorities against the majority, by restricting the legislative power of the Assembly to laws " founded upon the charter, and rightly derived from the General Assembly, lawfully met and orderly managed." The last section requires that adequate compensation be paid to all officers, that every man should serve when elected or submit to a fine, and that " in case of imminent danger no man shall refuse." In conclusion they proceed to adopt generally the common law of England, with the reiterated restriction that they enact only " such of them
207
BILL OF RIGHTS AND CODE OF LAWS.
and so far, as the nature and constitution of our place will admit." Upon this all-important saving clause in the charter they laid great stress. It was their guarantee and shield of independence. Under their patent they claimed that they could do as they pleased, so long as they did not violate any law of England, and they acted accordingly. Practically they declared that " their gov- ernment derived all its just powers from the consent of the governed," and expressly they established, for the first time in the history of the modern world, a " Democratical form of government." To secure this and their cherished idea of religious freedom, were the two objects aimed at throughout the digest of laws then adopted. For these high purposes they sacrificed their early predilections for English laws wherever they conflicted with them. They commenced their career as an independent State, by vir- tue of a charter that made them such, and which they knew, although it might be forfeited by abuse, could not be revoked at pleasure. Their statutes were so framed as to be within both its letter and its spirit, and so long as this was the case they felt secure in their liberties.
The code, in its divisions of the law, is not remarka- ble for precision, and the definitions of crime are not such as we should find at this day in a work on criminal juris- prudence ; but the meaning is clear and unmistakable. Each offence is separately defined, and its penalty dis- tinctly stated. A feeling of humanity pervades the whole, as if the object were to repress crime rather than to pun- ish it. In this point it presents a striking contrast to the vindictive spirit of cotemporary codes ; sometimes indeed erring, it may be, on the side of mercy, and ever display- ing a marked respect for the rights of conscience. An instance of the former peculiarity is found in the statute against burglary, of which the penalty was death, save where the convict was under fourteen years of age, or was a poor person impelled by hunger to commit the crime ;
CHAP. VII. 1647. May 19-21.
208
HISTORY OF THE STATE OF RHODE ISLAND.
CHAP. VII. in which case it was declared to be larceny. The pream- ble to the law against perjury well illustrates the regard 1647. felt for private scruples. "Forasmuch as the consciences May 19-21. of sundry men, truly conscionable, may scruple the giving or the taking of an oath, and it would be nowise suitable to the nature and constitution of our place, who profess ourselves to be men of different consciences and not one willing to force another, to debar such as cannot do so, either from bearing office among us or from giving in testi- mony in a case depending ; be it enacted by the authority
of this present Assembly, that a solemn profession or tes- timony in a court of record, or before a judge of record, shall be accounted, throughout the whole colony, of as full force as an oath ; " and then it proceeds to decree the penalty of perjury against any who should falsify such testimony. This deference to conscientious motives is the more remarkable as at that time the Friends did not yet exist as a distinct society, holding to the unlawfulness of oaths. It is a practical and legal exposition of the Rhode Island doctrine upon one of the very subjects for which the Founder of the State had suffered twelve years be- fore.1 The law for the recovery of debts contains a pro- vision in behalf of the honest debtor, which later codes might well embody-" but he shall not be sent to prison, there to lie languishing to no man's advantage, unless he refuse to appear or to stand to their order."
Marriage was held as a civil contract throughout New England. The statute required the banns to be published at two town meetings, and confirmed before the chief offi- cer of the town. It was then to be entered on the town records, thus providing, in that early day, a registry of marriage, such as recent legislation has attempted to re- vive. The statute regulating the probate of wills con- tains a singular provision in the case of intestates, or of
1 On 30th April, 1635, Roger Williams was called before the Council for his views on the matter of oaths. Chap. i. p. 30, ante.
209
ARCHERY PRESCRIBED BY STATUTE.
executors declining to act. The town council were to CHAP. have an inventory taken, and then to distribute the estate VII. among the heirs at law, appointing an executor for that 1647. purpose ; in other words, they were to make a will for May 19-21. him. This was a common thing, and many such quasi testaments remain upon the town records, in some of which a largely discretionary power appears to have been exercised by the councils.1 It was not unusual to prove a will in the presence of the testator, before his death. The instrument being executed, and witnesses examined, it was returned to the testator duly certified, and after his decease testamentary letters were issued to the execu- tor. The advantage of this course where questions of sanity or fraud are involved is obvious.
There are very many points in this digest that make it an interesting study, illustrative of the progressive views of our ancestors, and of the dangers that surrounded them. We can allude to but one other statute, bearing upon the latter point. So important was the subject of archery considered, in view of the menaces to which they were exposed from warlike tribes, whose weapon was the bow, and of their own liability to be deprived of the use of their fire-arms from want of ammunition, that it was not left, like the other laws relating to military defence, to be established in the acts and orders of Assembly, but was embodied in the code itself. Every man between the ages of seventeen and seventy was required to keep a bow and four arrows, and to exercise with them ; and every father was to furnish each son, from seven to seventeen years old, with a bow, two arrows and shafts, and to bring
' Judge Staples says upon this subject : " They were not simply a division and distribution of the estate of the deceased among his heirs at law, but in one instance now in existence in the city clerk's office in Providence, they dis- posed of part of the real and personal estate to the widow, part for life and part in fee, and divided the residne among the children as tenants in fee tail general, with cross remainders. This is believed to be peculiar to this col- ony." Code of 1647, p. 50, note.
VOL. 1-14
210
HISTORY OF THE STATE OF RHODE ISLAND.
CHAP. VII. them up to shooting. Violation of this statute was pun- ished by a fine which the father was to pay for the son, 1647. the master for the servant, and to deduct it from his wages.
May 19-21.
At the close of the criminal and other general statutes of the code occur these remarkable words :-
" These are the laws that concern all men, and these are the penalties for the transgression thereof, which, by common consent, are ratified and established throughout the whole colony ; and, otherwise than thus what is herein forbidden, all men may walk as their consciences persuade them, every one in the name of his God ; and let the saints of the Most High walk in this colony without mo- lestation, in the name of Jehovah their God, forever and ever."
Thus they deny the existence of any crime not speci- fied in the code, and expressly permit any act not therein forbidden. The famous statutes of 2d Elizabeth, con- cerning uniformity and ecclesiastical supremacy were not " conformable to the nature and constitution of the place." The code preserves as significant a silence on this subject as does the charter upon which it is based, while the last clause of this appended sentence proves that it was by no oversight that the aforenamed acts of intolerance were not recognized in Rhode Island.
The concluding sections of the code, " Touching the public administration of justice," relate to the appoint- ment . of officers, very fully defining the duties of each, and regulate the proceedings in Courts. By these it ap- pears that the President and Assistants had no part in legislation. That power was reserved to the General As- sembly of all the people, and to the Courts of Commis- sioners, six from each town, appointed at this time. Thus it remained until altered by the royal charter. They composed the General Court of Trials, having cognizance of weighty offences, and were also a Court of Appeal in
211
DEATH OF CANONICUS.
cases that were too difficult for the town Courts to decide. CHAP. VII. Causes between different towns, or between citizens and strangers were also tried by them. This Court met in 1647. May and October. The town Courts had original juris- May 19-21. diction in suits among their own citizens. The President was conservator of the Peace over the colony, and the As- sistants in their respective towns, where they also acted as Coroners. Besides these officers there were a General Recorder, a Public Treasurer, and a General Sergeant ; afterwards 1 a General Attorney and a General Solicitor were added .?
Such were the proceedings of the first General As- sembly of Rhode Island. From them we may gather the spirit of all her subsequent legislation, and with a knowl- edge of the condition of affairs in England, and in the neighboring colonies at this period, we may almost foresee the leading events of her history. The young Common- wealth was now fairly started on its career of progress, with no precedents to guide its earnest statesmen in their perplexities ; nothing but their own clear minds and strong hearts could aid them in solving the two grandest problems in civil government. Well has the philosophi- cal historian of the United States said of Rhode Island : " Had the territory of the State corresponded to the im- portance and singularity of the principles of its early ex- istence, the world would have been filled with wonder at the phenomena of its history.3"
The death of Canonicus, the carliest and firmest friend of Rhode Island, took place at this time. The venerable sachem of the Narragansets, who was an old man when the first plantation was made at Providence, just lived to
1 In May, 1650.
2 The similarity between the New England Confederacy of 1643 and the National Confederation of 1783 has been often remarked ; but there is yet a stronger resemblance in the relative position of the four towns of Rhode Island in 1647, and the States of the Federal Union under the constitution of 1787.
3 Bancroft's Hist. of U. S., i. 380.
.
June 4.
212
HISTORY OF THE STATE OF RHODE ISLAND.
CHAP. see the scattered and feeble settlements of the English VII. united into one Province. He died at a critical period in 1647. the history of his nation, when they were striving by vain June 4. delays to evade the ruinous treaty imposed on them by the New England confederates. As he passed in review the events of his long and chequered life, it is no wonder that his declining years were clouded by gloomy forebod- ings. Under the guidance of his warlike ancestor, Tash- tassuck,1 the tribe had become a nation, and successive conquests had swelled the nation into an empire. Long before the Pilgrims landed at Plymouth Rock, Canonicus had inherited the sceptre of a wide-spread dominion, by far the most powerful of any that were found by the Eng- lish. He was "a wise and peaceable Prince," aiming to advance his race in the arts of civilized life, even before any contact with the English had made them acquainted with the means and appliances of civilization. When conquest had secured his kingdom war was laid aside ; commerce and manufactures, limited and rude to be sure, were encouraged, and the Narragansets became rich as well as strong, spreading the knowledge of their language and the customs of their trade over a region of more than six hundred miles in extent .? But the spell of their power was broken when the Pilgrims received the proposal of Ousamequin, or Massasoit, to form a friendly alliance. The defection of the Pokanokets carried with them all their subordinate tribes, and since that time one after another of the native chiefs had deserted their proper prince, to seek the dangerous protection of the English. In all his intercourse with the English, from the time of
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