USA > Rhode Island > Providence County > Providence > History of the state of Rhode Island and Providence plantations, Vol. I > Part 37
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5 April, 1661.
6 In 1663, the evidence of which is in a bill of costs presented by him against the town of Warwick to the Court of Commissioners, 17th Nov., 1677, preserved in the Harris MSS.
433
FURTHER DISPUTES AND LITIGATION.
merous suits for trespass were brought in various Courts, CHAP. without regard to jurisdiction.1 Cross suits were insti- X. tuted and counter writs of ejectment were issued, with no 1677. possibility of an unbiassed decision, owing to the mode in which the tribunals were constituted, the whole commu- nity being parties in interest, either directly or contin- gently, in every case, nor with any power to enforce a judgment, for the same reason. The progress of these various suits may be traced with great minuteness in the voluminous files of the Harris manuscripts. William Harris was generally successful in obtaining verdicts, but could rarely obtain execution, or have process served, un- der them. The officers were sometimes resisted by the contesting claimants, at others the awards of arbitrators or the decrees of Court failed to be carried out. He spent half his life in this fruitless litigation, the details of which, covering more than thirty years, would be te- dious to the reader, and unimportant to the purpose of this work. So inextricable was the confusion, and so pressing the difficulties arising from these complicated sources, that William Harris, as agent for the Pawtuxet proprietors, at length resolved to go a second time to England, to petition the King for a special commission to decide upon them. The petition was referred to the Board of Trade .? It set forth the rival claimants to por- tions of the Pawtuxet lands, and prayed that the gover- nors of the four New England colonies, or such men as they might appoint, with a jury chosen in part from cach colony, should settle all differences in the premises.3 The mission was successful. A royal order was issued to the
1 The Pawtnxet subjects of Massachusetts in 1650 sned W. IIarris for trespass, and judgment was rendered for the defendant July 31. Harris was himself one of the Pawtuxet proprietors.
2 On June 11th, 1675.
3 The petition of 1675, with the order upon it issned 4th August, and the royal letter to the four governors, dated August, 1675, is entered in the Brit- ish State Paper Office, New England papers, vol. xxxii. pp. 38-47.
VOL. 1-28
434
HISTORY OF THE STATE OF RHODE ISLAND.
1677. Oct. 3. Nov. 17.
CHAP. X. four governors who, after some delay, appointed commis- sioners to hear the disputes.1 They met at Providence, and empanelled a jury of four from Massachusetts, two from Plymouth, and three each from Rhode Island and Connecticut. The Court then adjourned to meet at Prov- idence, where five cases were tried, three against private parties for trespass, the other two against the towns of Warwick and Providence, to compel them to run the boundary lines before agreed on, and to decide the title of lands on either side of these lines. William Harris, Thomas Field, and Nathaniel Waterman were the plain- tiffs, and Harris was the attorney for Pawtuxet, in all these cases. Randall Holden and John Greene were ap- pointed 2 by the town of Warwick to defend her cause. Roger Williams, Gregory Dexter, and Arthur Fenner ap- peared in behalf of Providence. The trials occupied four days, and resulted in a verdict for the plaintiffs on every case.3 The town of Warwick, being cast in the suit, at once appointed 4 their two attorneys, as agents, to proceed to England to represent their case before the throne, and 21. to protest against the second verdict of the jury. War- rants were issued to compel execution of the verdicts, but the question of costs was reserved for advisement with the respective governors, the Court doubting its powers to is- sue execution for them.
In order to present these controversies, so far as they have a public interest, in a compact form, we shall be obliged to pass somewhat beyond the period to which this chapter is limited, condensing as much as possible the pro-
1 These were Simon Lynde and Daniel Henchman of Mass., Thomas Hinckley, Esq., and James Cudworth, Esq., of Plymouth, Capt. George Den- ison and Daniel Witherell of Conn., Peleg Sandford, Esq., and John Cogges- hall, of R. I.
2 Oct. 1, 1677. See Warwick records.
3 The pleadings in full are preserved among the Harris MSS.
4 29th Nov., 1677. See Warwick records, and their commissions were read and approved in town meeting, 18th January.
435
THE VERDICTS UNEXPLAINED.
ceedings of the next two or three years upon these cases, CHAP. and then leave the subject for ever. X.
To decide the question of costs, the Court met at Bos- 1678. ton, but the Connecticut members being absent, it was ad- May 23. journed to meet at Providence. The eight commissioners assembled there, but found that nothing had been done June 18. about running the line between Providence and Pawtuxet in accordance with the verdict, which required it to be run by the defendants "equally between Pawtuxet river and Wanasquatucket river, till they meet a thwart line from the head of Wanasquatucket river, directly running to Pawtuxet river." An imperfect line, contrary to the in- tent of the Court's order, had been surveyed between the two rivers, a map of which was presented by Mr. Fenner, but rejected by the Court, as being unfair towards the plaintiffs ; as the thwart line was drawn to intersect it at an acute instead of a right angle. The Court summoned the jury to appear in October, and explain their verdict in this case, the third in the order of trial. At this meeting, Oct. 2. one of the commissioners being absent, the two from Rhode Island withdrew, deeming the Court disqualified to act un- less every member was present. The others, considering a quorum to be sufficient, proceeded to act. The jurors were all present, but the three from Rhode Island refused to explain the verdict. The other nine explained the meaning of their third verdict, that the two lines were to intersect at right angles. Still, as some of the Court were absent, and others doubted their power, under these cir- cumstances, to issue warrants to enforce its execution, as now explained, the whole matter was referred back to the king, and a full statement of the case was prepared and sent to England by Governor Leverett.1
1 This long statement details the manner in which the Court and jury were constructed, the five verdicts rendered, and all subsequent proceedings of the commissioners. It is entered in New England papers, vol. xxxii. p. 296. Br. S. P. O.
436
HISTORY OF THE STATE OF RHODE ISLAND.
CHAP. X. 1678-9. Jan. 2.
1679. June 19.
July 2. 9.
Holden and Greene went to England to protest against the second verdict, which required the town of Warwick and certain individuals in it, as tenants by force, to restore the land, with one hundred pounds damages, to the plain- tiffs. They obtained an arrest of judgment by royal de- cree, till Harris should prove title before the king in coun- cil. Scarcely had they left London to return home, when Harris appeared, for the third time in England, to urge the cause which law and justice had so often decided in his favor. Exceptions had been taken by the Warwick agents against having referees from Massachusetts or Con- necticut, by reason of their former difficulties with War- wick men, and a valid objection was now made by Harris against any Rhode Island referees, as being interested par- ties. The council therefore recommended that the Magis- trates of Plymouth colony should decide the questions be- tween Warwick and Pawtuxet, and that Rhode Island be required to put Harris in possession of his lands under the other four verdicts, within three months from the time of receiving the order, or otherwise that Plymouth should see it done. An order to this effect passed the council, and letters were prepared in accordance therewith.1 Thus Harris was again triumphant before the highest tribunal in the realm, but justice was still withheld. Governor Winslow gave the parties a hearing and decided in favor of Harris, confirming the verdict against Warwick .? The governor and council of Rhode Island received the royal order brought over by Harris, and placed a warrant in the hands of the marshal, to execute judgment in accordance with the verdicts. This he attempted to do, but it would
Sept. 30.
Nov. 24.
1 The report in full is entered in New England papers, vol. xxxii. p. 346, S. P. O. R. I. Col. Rec., iii. 66.
2 Oct. 28th Gov. Winslow summoned the parties interested in the second verdict, and after a full hearing confirmed the action of the Court of Com- missioners in favor of Harris. On 2d Nov. he sent a report of the case to the King, now preserved among the Harris MSS., giving a clear statement of the questions involved in that case, and the reasons of his decision.
437
DEATH OF WILLIAM HARRIS.
seem that the plaintiffs themselves refused to receive pos- CHAP. session except in the terms of the verdict, which required X. the defendants to run the lines. This they had not done, 1679. and the marshal properly refused to do it, although urged to do so by the plaintiffs. At any rate, the plaintiffs failed to point out the lands, and the marshal made his return Dec. 10. in accordance with these facts. The truth of this return was denied by the plaintiffs who collected evidence to im- peach it. Harris, resolute amid all these obstacles, im- mediately sailed for England for the fourth time. On this 25. occasion, besides his Pawtuxet business, he was the accred- ited agent of Connecticut in her claim against Rhode Island for the Narraganset country. The ship was cap- tured by a Barbary corsair, and he, and other prisoners, were taken to Algiers, and sold in public market as slaves. For more than a year he remained in this sad situation, Feb. 23. when his ransom was effected at a cost of twelve hundred dollars. The colony of Connecticut became responsible for the whole amount and contributed handsomely towards it. The money was afterwards refunded by his family. Landing at Marseilles in the summer he travelled through France, and broken down by the trials of Turkish bondage, died in three days after reaching London.
Thus perished one of the strong men of Rhode Island. He filled a large space in the early history of the colony, as an active, determined man, resolute in mind and vig- orous in body, delighting in conflict, bold in his views on the political dogmas of his time, fearless in his mode of ex- pressing them, striking always firmly, and often rashly, for what he believed to be the right, and denouncing with the energy of a concentrated intellect all men or measures that did not conform to his ideas of truth or of justice. His controversy with Roger Williams, we have before re- ferred to. It was never forgotten, and scarcely forgiven, by either of these great men, and presents the darkest blot that rests upon their characters. The public career of
1679-SO. Jan. 24.
1681.
438
HISTORY OF THE STATE OF RHODE ISLAND.
CHAP. X. Harris was almost uninterrupted, except by his frequent voyages, and these were always upon official business. As 1681. an assistant or a deputy, his name constantly occurs in connection with important trusts, and no man, unless it be his great opponent, has left a deeper mark upon the rec- ords of his State.
1682.
The year following his death, another attempt was made to settle the controversy between Providence and Pawtuxet by mutual agreement. The line agreed upon narrowed the limits of the Pawtuxet purchase more than any previous attempt at adjustment had done. The same committee were to settle the Warwick dispute. Both at- tempts failed, and the line between Providence and War- wick was finally settled by the legislature in 1696, as it now exists, making the Pawtuxet river the boundary. This gave to Providence jurisdiction over the litigated tract, which was on the north side of the stream included in a bend of the river. The other controversy was main- tained at great cost, agents being employed in England, and hearings had before the royal council as late as 1706, all to no practical result. It was finally settled by com- promise in May, 1712, when the line was run and bounds set up, reducing still further the limits of the Pawtuxet purchase. The moral conveyed in the result of this pro- tracted and costly litigation is apparent.
439
THE STRUGGLE RENEWED.
CHAPTER XI.
1678-1686.
FROM THE RENEWAL OF THE STRUGGLE FOR THE SOIL OF RHODE ISLAND, 1677-8, TO THE SUSPENSION OF THE CHIAR- TER, JUNE, 1686.
THERE are many periods of Rhode Island history, some of which we have already passed, that could not be truly written without a free access to the archives of the British government. To no period does this remark ap- ply more fully than to that upon which we entered at the close of the preceding chapter. The Harris controversy is scarcely referred to in the State records, the council minutes having been sent to England as evidence. The struggle for jurisdiction that was now to be resumed on every side against Rhode Island, was soon transferred to the English Court, in whose archives alone its progress can be correctly traced. The disasters suffered by Rhode Island during Philip's war, furnished the occasion for a renewal of the disputes that, with one exception, had been definitely settled by the royal commissioners of 1664. Even Connecticut, as we have seen, had acquiesced for a time in the decision of Sir Robert Carr, but soon took exceptions to that settlement based upon the absence of Col. Nichols, governor of New York, who was induced,
CHAP. XI. -
440
HISTORY OF THE STATE OF RHODE ISLAND.
CHAP. XI. upon no valid grounds, to dissent from the unanimous decree of his colleagues in favor of Rhode Island. The war had for a time suspended the dispute in regard to the jurisdiction of Narraganset, but now her claims were put forward with increased energy, on the new ground that it belonged to her by right of conquest-the same reason that had formerly been put forth by Massachusetts after the Pequot war. Massachusetts also entered the field again as a claimant, in behalf of the heirs of the Ather- ton company ; and Plymouth, not satisfied with the de- cision that bounded her upon Narraganset bay, until the King's pleasure should be further known, injudiciously sought to re-open the question, assigning reasons for so doing that may well excite surprise. Thus the ancient controversies with all her neighbors were re-opened, and Rhode Island, weakened by pestilence and wasted by war, was again involved in the struggle for existence.
It is not enough to say that, after nearly seventy years of further contest, she came out more than victorious over all her opponents, not only retaining the territory which they sought to wrest from her, but adding some- thing to it from two of them at least ; but we must trace the progress of the struggle, if we would have even a faint idea of the difficulties that beset her. At one time it will appear as if all was lost, and that the colony must be absorbed by her ambitious sisters, and again the recu- perative energy of the sturdy "heretics" will seem to have already won the battle. The plan of having resi- dent agents in London soon came from necessity to be adopted by each of the New England colonies, the record of whose acts, in many cases, can only be found among the archives of the home government.
1678.
While the era upon which we now enter is memorable for the above-named causes, the present year is not less remarkable for the changes wrought by death in the chief magistrates of the colony. No less than three different
441
TAX LAW AMENDED.
governors filled that place within five months, two of CHAP. XI. whom died in office. The lapse of forty years was telling the tale of mortality upon the founders of the State. 1678. The first generation of Rhode Islanders was fast passing away.
The force of the colony at this time was from one thousand to twelve hundred freemen able to bear arms.1 At the election Benedict Arnold was again chosen gover- nor, and Major John Cranston deputy governor. Gov. Arnold was then too ill to attend the Assembly, so that the engagement was administered to him by a committee at his own house. The tax law was further modified at this session, and as taxation without representation was one of the prime grievances which, a century later, roused the American colonies to arms, it is important to notice how early and deeply-rooted was this idea in the Rhode Island mind, and how frequently it appears upon the stat- ute book of the State. By an existing law 2 no tax could be assessed without a full representation of deputies from all the towns. This was now amended so as to require legal notice to be given, by warrant from the governor, to every town, that a tax was to be assessed, without which notice no levy could be made.3 Since the creation of the office of major, during Philip's war, the choice of that officer had devolved upon the militia, but this was now changed, and all freemen were admitted to vote upon the
1 Report of Sir Edmund Andros to Board of Trade received 9th April, 1678, in reply to queries on the state of the New England colonies, addressed to him the day previous. A rough draft of the seventeen queries is filed in Br. S. P. O. New England, vol. ii. p. 140, and the original answer on pp. 149, 150. By this the relative strength of the colonies may be ascertained. Sir E. A. had lately returned from America, where he had been governor of New York. He estimates Connecticut force at 3000, Rhode Island 1000 to 1200, Plymouth 1000 to 1500, and Massachusetts 8 to 10,000.
2 Passed Nov. 6th, 1672.
3 It was soon found necessary to repeal this act. The struggle to main- tain the rights of the colony in England often required money to be raised to meet emergencies, which could not be done promptly under this statute. It was therefore repealed in July, 1679.
May 1.
442
HISTORY OF THE STATE OF RHODE ISLAND.
CHAP. XI. question, provided they personally appeared to do so, upon election day. A permanent court-martial for the trial of 1678. delinquent soldiers was instituted, to consist of the major and a majority of the commissioned officers of the several military companies in the colony. A bankrupt law was also passed, based upon the statutes of Elizabeth and James. Five men were chosen as commissioners of bank- rupts, who were sworn to make a just and proportionate distribution of insolvent estates among the creditors. They were to notify parties interested to present their claims, and had full power to do all acts necessary to the fulfilment of their commissions.1 This law, for some rea- son not apparent, could not stand the test of the first case June 12. that was brought up for action under it, and was repealed within six weeks, at the beginning of the adjourned ses- sion of the Assembly. The conflict of land titles in Nar- raganset, among private owners as well as townships, led the Assembly to order a survey and plats to be made of the several tracts. They also required all purchasers, who held by Indian titles, to present their deeds to be passed upon by the Assembly, in order that the vacant lands might be known and should not be settled upon ex- cept by their order. Fast riding within the compact parts of Newport was forbidden under a penalty of five shillings, on account of an accident from that cause which had lately occurred. Constables were re-appointed for the towns in Kings Province.
A greater accuracy in the terms employed in framing statutes is observable at this time. The additional words, " and by the authority thereof be it ordained, enacted, and declared," appended to the enacting clause of a law, which surplusage, with slight modifications, continued in use till a very recent date, appear for the first time at
1 The commissioners of bankrupts were the deputy governor, Major John Cranston, the general treasurer, Peleg Sandford, John Coggeshall, the general recorder, John Sandford, and the attorney-general, Edward Richmond.
443
CHAP. XI. 1678. June 12.
DEATH OF GOVERNOR ARNOLD.
this session. Again, the law of 1647 which empowered the town councils to appoint an " executor" upon the es- tate of a deceased intestate, was amended by substituting for that term " the word administrator ; it being in that case the more proper and usual term in the law." Among the curiosities of legislation may here be cited the con- cluding clause of an act making a final settlement of the accounts of the late general sergeant, which it seems were so involved as to be beyond the power of the auditing committee to strike a balance. It was therefore voted to call the accounts square, " and that by this act there is a full and fynall issue of all differences relating to the said accounts from the beginninge of the world unto this pres- ent Assembly !" A more comprehensive statute cannot well be imagined. The military power, which during the war had been placed in the hands of the town councils, was now taken from them, and vested more completely in the major-general, who could call out all the troops for exercise at his pleasure, and was subject only to the orders of the Assembly, the governor, deputy-governor, or their council.
Scarcely had the Assembly adjourned when Gov. Ar- nold died. He had been a resident of Newport for twen- ty-five years, having removed from Providence during the division that continued in the colony for more than a year after the revocation of Coddington's commission, and was very instrumental in effecting the subsequent recon- ciliation and union of the towns. From that time he was almost constantly in public office, first as a commis- sioner from Newport and then as assistant. For five years he was President of the colony under the old patent, and was named in the second charter as governor, which office he filled at seven different times by popular election.1 His liberal views and thorough appreciation of the Rhode
1 He was elected a commissioner in 1654, 1656-assistant in 1655, 1660- 61-president in 1678-9, 1662-63-governor in 1663-4-5-9, 1670-1-77 and 78, and died in his sixty-fourth year.
20.
444
HISTORY OF THE STATE OF RHODE ISLAND.
CHAP. XI. 1678. June 20.
Island idea of intellectual freedom, appear in the letters that, as president of the colony, he wrote in reply to the arrogant demands of the United Colonies, when they urged the forcible expulsion of the Quakers.' That he was no friend of the doctrines, or advocate of the conduct, of the followers of Fox, is evident from his writings ; but that, like Williams, he recognized the distinction between per- secution and opposition, between legal force and moral suasion, as applied to matters of opinion, is equally ap- parent. In politics and theology he was alike the oppo- nent of Coddington and the friend of John Clarke, and throughout his long and useful life he displayed talents of a brilliant order, which were ever employed for the wel- fare of his fellow-men.
July
Active demonstrations were soon made both here and in England by the several claimants for the soil of Rhode Island. The first of these proceeded from Plymouth in a letter to the King, recounting the disasters sustained by that colony during the war. It goes on to say, " our neighbors of Rhode Island were once so ungrateful, after we had freely given them the said island,2 to accommodate them in their distress when banished by the Massachu- setts, that by misinformation they obtained from your Majesty a good quantity of the best of our land on the maine, the same that we now call conquest lands, but better informed by your commands, you were pleased to
1 These two letters are printed in R. I. Col. Rec., i. pp. 376-80.
" The claim here set up that Aquidneck was " freely given," is somewhat remarkable in view of the fact that when Williams and Clarke, with the An- tinomian committee, went to Plymouth early in March, 1637-8, to inquire about their contemplated settlement at Sowams, that spot was claimed " as the garden of Plymouth patent," and the applicants were advised to select the other location, which they had also in view, Aquidneck, because it was be- yond the limits of Plymouth patent. See Clarke's Narrative, or Ill News from New England, p. 24-5, and ante chap. ii. Now, forty years later, they claim, to the King, that the island was " freely given," and charge Rhode Island with being "ungrateful" for the signal favor of having received at their hands what they admitted at the beginning did not belong to them.
445
ACTS OF PLYMOUTH AND MASSACHUSETTS.
return it again to us. We have reason to fear they are CHAP. XI.
coveting it, or part of it, again, and it may bee some of them will pretende to have a right of purchase of the In- 1678. dians, &c." It next assails the conduct of Rhode Island during the war, in these words: " The truth is the au- July. thority of Rhode Island being all the time of the warr in the hands of Quakers, they scarcely showed an English spirit, either in assisting us, their distressed neighbors, or relieving their own plantations upon the Mayne,' but when, by God's blessing upon our forces, the enemy was routed and almost subdued, they tooke in many of our enemyes that were flying before us, thereby making profit by our expence of blood and treasure," &c.2
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