USA > Rhode Island > Rhode Island : three centuries of democracy, Vol. I > Part 14
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ORGANIZING A DEMOCRACY
The officers of the new island government were elected annually on the Wednesday fol- lowing the twelfth of March at "the general court of election," which convened alternately at Newport and Portsmouth. The general court of election included the Governor, Deputy Governor, Assistants and other officers, and such of the freemen as presented themselves. The records of early years included the names of officers and freemen in attendance. This general court of election forecasted the annual election meeting of freemen in general assem- bly under the Charter of 1663 until the device of proxy voting had developed into a system of state elections conducted in the towns. Parliamentary meetings of the General Court, consisting of the Governor, Deputy Governor and Assistants, were held at various times and in Portsmouth or Newport as convenience suggested, until August, 1640, when semi-annual meetings in March and September were ordered. The arrangement of meeting places to suit convenience suggested the peripatetic General Assembly of later days, and the five meeting places of the General Assembly named in the Constitution of 1842. Laws and orders passed previous to 1640 were revised by the new General Court that met in Newport on May 6, 1640; some were repealed, the others were ratified and confirmed. While this revision was similar to the modern procedure of adopting a revision and codification of statutes as a new statute, in the particular instance the action was taken to quiet questions as to succession and as to the legal status of enactments earlier than March 12, 1640, in view of the change in the government made on that day. The business of the General Court after March 12, 1640, included the routine of administrative matters that might be expected, and in addition other measures of greater historical significance. In May, 1640, a system of courts was organized, including provision for monthly sessions of trial courts with juries in each of the two towns, and quarterly sessions of the General Court as a judicial body. In August of the same year exclusive original jurisdiction of cases arising in a town was given to the trial court set up for the town, "provided that it be not in the matter of life and limb," with appeals to the quarterly sessions of the General Court. The militia was thoroughly organized, and provision was made for a public store of powder and shot in both towns.
The General Court of Elections at Portsmouth in 1641 continued in session four days from March 16 to 19. The names of four freemen appear in the record as cancelled, with the note "these four at the court of sessions, March 16, were disfranchised, and the names to be cancelled out of the roll." The first order of the General Court of Election, March 16 and 17 the following year, disfranchised the same freemen "of the privileges and preroga- tives belonging to the body of this state," and directed the cancellation of their names out of the record. The persons disfranchised were associates of Samuel Gorton, who had been ban-
Politicke in the Ile of Aquethnec." On March 13, 1644, the name was changed thus: "It is ordered by this Court that the island commonly called Aquethneck shall be henceforth called the Isle of Rhodes, or Rhode Island."
In the complete absence of telegraph and radio, associated press and daily newspapers, rumor of this significant action by the island assembly did not reach Roger Williams, who obtained, and the Earl of War- wick, who signed, the charter for Providence Plantations in London on the following day. They were as completely uninformed of it as were General Andrew Jackson and General Packenham of the treaty of peace already signed when they fought the battle of New Orleans. News of the treaty probably would have deterred Packenham from attacking; it certainly would not have deterred Jackson from fighting the war to a peaceful finish, and complete victory, as he did. The restoration of the Stuarts in 1660 necessitated a fresh legal establishment ; wherefore John Clarke went to England to conduct negotiations for the King Charles Charter of 1663, which used the name "Governor and Company of the English Colony of Rhode Island and Providence Plantations, in New England, in America."
The Act of Independence of May 4, 1776, continued usage of the name as used in the royal charter, in the provision for the substitution for the name of the king in writs and other legal process of the name "The Governor and Company of the English Colony of Rhode Island and Providence Plantations." On July 19, 1776, the Rhode Island Senate, then called the Upper House, concurred in an act originating in the House of Deputies, referred to as the Lower House, changing the name of Rhode Island. The vote of the Senate as recorded was :
"Vote of the Lower House declaring the Title of this Government shall be 'The State of Rhode Island and Providence Plantations' was read and concurred with this amendment, that the said Act and the Act approving the Resolution of Congress declaring the United American States free and independent States be published in the next 'Newport Mercury' and 'Providence Gazette.'"
The name of Rhode Island appears as "Rhode Island and Providence Plantations" in the Constitution of the United States, which suggests the impossibility of further changes otherwise than by federal constitu- tional amendment.
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ished from the island for contempt of the government, and subsequently joined him in the settlement at Shawomet. Perhaps the summary action of the General Court, whether it was taken in 1641 or 1642, or taken in 1641 and repeated in 1642, was intended to conclude the controversy opened by Gorton .* There was no such change in officers as might be expected if the proceedings at this session, suggestive as they were that the freemen were in control and purposed action definitely to establish certain relations between them and their officers for the time being, might be construed as the effects of a quiet but complete revolution. The body prescribed an engagement for officers before electing them, as follows: "To the execu- tion of this office I judge myself bound before God to walk faithfully, and this I profess in the presence of God," and it also ordered that an "oath of fidelity or some other strong cog- nizance" be required of all men or youth above fifteen years of age. The form of government was declared to be a "democracy." The declaration was momentous in a time in which monarchy was the prevailing world form of government, whether it be construed as merely a resolution expressing a strong sentiment or as a warning to officers, who perhaps were over zealous, that they were no more than agents and servants of the body politic. To the latter construction the declaration lends itself if complete value is assigned to the careful state- ment of the function of officers that follows the declaration proper. The entire order follows :
It is ordered and unanimously agreed upon that the government which this body politic doth attend unto in this island, and the jurisdiction thereof, in favor of our Prince is a Democracy or Popular Government; that is to say, it is in the power of the body of freemen orderly assembled, or the major part of them, to make or constitute just laws, by which they will be regulated, and to depute from among themselves such ministers as shall see them faithfully executed between. man and man.
Whatever may have been the occasion for adopting a resolution of this type, it certainly contained an effective antidote for concentration of power in the Judge and Assistants, whose ordinance power as a parliamentary general court between sessions of the general court of elections was otherwise not limited. The General Court adopted a declaration of liberty of conscience in the following language: "That none be accounted a delinquent for doctrine, provided it be not directly repugnant to the government or laws established." At the General Court held in Newport in September following it was ordered "that the law of the last court made concerning liberty of conscience in point of doctrine is perpetuated." The orderly conception of public business on the island appeared in two orders, one to establish a record of deeds and the other to establish a record of laws and public notice thereof, as follows : "That each town shall provide a town book, wherein they shall record the evidences of lands by them impropriated, and shall also have power to give forth a copy thereof, which shall be a clear evidence for them and theirs to whom it is so granted"; and "that a book shall be provided wherein the Secretary shall write all such laws and acts as are made and constituted by the body, to be left always in that town where the said secretary is not resident, and also that copies of such acts as shall be made now or hereafter at the General Courts concerning necessary uses and ordinances to be observed shall be fixed upon some public place where all men may see and take notice of them."
A manual seal "for the state" was ordered, "the signet or engraving thereof" to be "a sheaf of arrows bound up, and in the liess or bond this motto indented: 'Amor vincet omnia.'" In this order the word "state" appeared for the second of three times in the record of this meeting; the oath of office or engagement had been prescribed for "the several offi- cers of the state." Probably the usage was no more than the common designation of gov- ernment as state; in view of the reference to the prince in the declaration of the form of government as a democracy, there probably was no forecast of the State of Rhode Island as an independent, sovereign state after May 4, 1776. The final action of this momentous gen-
*Chapter III.
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ORGANIZING A DEMOCRACY
eral court of elections was a decree establishing the nature of the legal tenure of lands at Aquidneck, as follows :
It is ordered, established and decreed, unanimously, that all men's properties in these lands of the island and the jurisdiction thereof shall be such and so free that neither the state nor any person or persons shall intrude into it, molest him in it, to deprive him of anything whatsoever that is, or shall be within that. or any of the bounds thereof, and that this tenure and propriety of his therein shall be continued to him cr his or to whomsoever he shall assign it forever.
This tenure was more than fee simple with perpetual inheritance ; it protected the owner of land from confiscation by the state and from sale by civil process for the payment of debt or judgment. It might even be construed to forbid trespass by public officers, and searches even with warrant. Not until enabling legislation was enacted in 1857 was it possible to enforce a judgment to collect a debt by sale of the debtor's land in Rhode Island, so long as the debtor remained within the colony or state.
The court of elections of 1642 forbade the sale of powder and arms of any kind to the Indians, and established a fine of forty shillings for a first offence, and for a second convic- tion a fine of "five pounds, half to our Sovereign Lord the King, and half to him that will sue for it." In September of the same year it was ordered that "the freemen of the town in these town meetings shall appoint the juries for the courts, and shall have power as well to appoint the inhabitants as freemen for that service by virtue of the tenure and grant of their lands which is freehold"; that "all such freemen that do not cohabit upon the island shall have no vote or power to transacting business in our courts"; and that "no man shall be dis- franchised, but when the major part of the body entire is present." In 1641 it had been ordered that a freeman or inhabitant endeavoring "to bring in any other power than what is now established (except it be from our prince by lawful commission) shall be accounted a delinquent under the head of perjurie," and in 1642 sales to persons outside the jurisdiction were forbidden under penalty of forfeiture. At the general court of elections on March 13, 1644, it was ordered that "the island community called Aquethneck shall be from henceforth called the Isle of Rhodes or Rhode Island."
The statute of 1642 so far as it reserved a part of a fine for the king was unique as the first instance in Rhode Island in which there appears to have been any suggestion of an income for his majesty to be derived from his colonial empire. The statute including inhabi- tants not freemen in juries was not so much a relaxation of the distinction, as a measure whereby the responsibilities of citizenship that were onerous might be distributed. There is nothing in the record to indicate a purpose to make the jury a more popular agency in the sense of location nearer to the body of the inhabitants.
In the short space of four years the "state" of Rhode Island had established an efficient government in the form of a democracy, had assured justice through a system of courts with provision for trial by jury, had drawn clearly and distinctly a line between local government vested in town and town meeting and general government vested in the "state," had estab- lished a unique tenure of land, had conserved the rights of inhabitants while establishing freemanship as a qualification for suffrage, had organized thoroughly a militia of inhabitants for the common defence, had maintained liberty of conscience, and along with the adoption of a seal, had provided an orderly system of recording deeds and laws. The meeting of the general court of elections for March 13, 1644, is the last recorded. The patent granted for Providence Plantations on the day following authorized, if it was not an expression of the will of the Earl of Warwick, a union of the towns of Providence, Warwick, Portsmouth and Newport, which was not achieved nevertheless until 1647.
UNION UNDER PARLIAMENTARY PATENT-It may be doubted seriously that there was any difficulty likely to arise in government resting upon compact without royal sanction that
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had not been experienced in Rhode Island before 1654, when a union of the four settlements at Providence, Portsmouth, Newport and Warwick was achieved, with Roger Williams as President. In the Providence settlement, a democracy in fact, in which government by mutual agreements reached in fortnightly meetings of masters of families had been supple- mented by compulsory arbitration as a device for maintaining harmony and adjusting differ- ences, there was scarcely sufficient authority vested in the arbitrators to enforce judgments. Power was wanting; in several instances resistance precipitated civil commotion, and in one the fact that riot and bloodshed ensued had been made a pretext by some of the inhabitants for seeking the protection of Massachusetts. While a keenly legalistic mind in Aquidneck had grasped the essential weakness involved even in the orderly government established there without sanction, as evidenced by an order in 1639 directing John Clarke and Nicholas Eas- ton to open negotiations for a patent by correspondence with Sir Harry Vane, the problem was brought positively into focus by Samuel Gorton's denial of authority and his challenge to the General Court which precipitated his banishment from the island for contempt and sedition. In 1642 the General Court appointed a committee, consisting of seven officers and three freemen, including John Clarke, "to consult about the procuration of a patent for the island." Meanwhile Gorton's attempt to locate in Providence had occasioned violent discord, his settlement in Pawtuxet had precipitated a submission by four residents there to the juris- diction of Massachusetts, and his purchase of Warwick and removal to Shawomet had been made a pretext by Massachusetts for armed intervention and invasion and the taking of Gorton by force as a prisoner to Boston for trial .* There is no record to indicate that the committee of the General Court at Aquidneck chose Roger Williams to undertake a mission to England to obtain a patent; nor is there any mention in the town records of Providence of his authorization in town meeting to go to England on behalf of the northern settlement. No correspondence between Newport men and Providence men that indicates an agree- ment has been preserved. It should be noted that the silence of the records is not con- clusive evidence that Roger Williams went to England, without authority ; the records are evi- dence of what they mention, but they fail to mention a great many things that were done. Arnold asserts, and other historians agree, that "the movement was made by the colony of Aquidneck, Providence united in it, and Roger Williams was selected as agent." He was, because of his friendship with Sir Harry Vane, perhaps the best representative that could be chosen. Yet he went without public provision for his travelling expenses, and to raise money to pay them he sold a half-interest in Prudence Island and Patience Island, which he had purchased in 1637. Because of the edict of banishment still in force in Massachusetts, he was precluded from embarking from Boston, and sailed from New Amsterdam in June or July, 1643, for Europe. Arriving in London, he found the city and government controlled by the Parliament, and King Charles, a fugitive from his capital, fighting to recover his throne and reduce the Parliament to submission. On March 14, 1644, Roger Williams obtained for the "inhabitants of the town of Providence, Portsmouth and Newport, a free and absolute charter of incorporation, to be known by the name of the Incorporation of Providence Plantations in the Narragansett Bay in New England." Carrying what was essentially in fact if not in form a safe-conduct permitting him to land at Boston and cross Massachusetts, Roger Williams returned with the Patent, reaching Boston on September 17, 1644, and Providence a few days later. News of his approach had reached the town, and tradition records that he was greeted on the further bank of the Seekonk, and escorted thence by fourteen canoes filled with people rejoicing because of his accomplishment.
The Charter of 1644, commonly referred to as the Parliamentary Patent or the Warwick Patent, the latter because the charter was granted under the authority of the Earl of War- wick as Lord High Admiral of the domain of the King in America, described the colony as
*Chapter V.
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ORGANIZING A DEMOCRACY
bounded north and east by Massachusetts, east and south by Plymouth, south by the ocean, and west and northwest by the Narragansett Indians, "the whole tract extending about twenty-five English miles unto the Pequot River and country." It recited that "divers well- affected and industrious English inhabitants of the towns" had "adventured to make a nearer neighborhood and society with the great body of the Narragansetts, which may in time by the blessing of God upon their endeavors, lay a sure foundation of happiness to all America." It granted unto the people of the towns "full power and authority to rule themselves and such others as shall hereafter inhabit within any part of the said tract of land, by such a form of civil government as by voluntary consent of all, or the greater part of them, they shall find most suitable to their estate and condition; and, for that end to make and ordain such civil laws and constitutions . ... as they, or the greatest part of them, shall by free consent agree unto; provided, nevertheless, that the said laws, constitutions . . be conformable to the laws of England so far as the nature and constitution of the place will admit." While the words "civil government" warrant the construction sometimes placed upon them that their use precluded the establishment of theocracy and effectually guaranteed the liberty of conscience that was dear to all good Rhode Islanders, the "full power and authority to rule themselves" left no doubt that the inhabitants retained soul liberty in complete functioning. The Warwick Patent was unlike earlier American patents in that it did not create a com- mercial or trading corporation ; it was purely and simply the authorization for the creation of a civil state, and remarkable for the unrestricted "power and authority to rule them- selves." It remained for the people themselves to put the patent completely into effect by organizing a government under its provisions, but that was found to be most difficult.
The fact that Roger Williams obtained a charter for Rhode Island under the name of Providence Plantations is probably the most convincing evidence that he did not go to Eng- land as the agent of Aquidneck. A man of his character, constantly shaming his avaricious associates by sacrifice of everything save his conscience, and generous to the extent of dis- tributing what was his own that they might quarrel among theinselves rather than with him, would not have asked that the name chosen by himself should be applied to the new colony. While the men of Aquidneck may have been chagrined that the name of Providence Planta- tions was given by the patent, their resentment for that reason alone is scarcely sufficient to explain their attitude of indifference if not hostility to the new order. Two other reasons existed --- Coddington's almost insatiable hunger for power and authority, and interference by Plymouth. The former had established himself securely in the government created by the reunion of Newport and Portsmouth; he had weathered the gentle revolution that had produced the declaration of March, 1641, that this "body politic is a democracy with power of the body of freemen to make or constitute just laws." A union with the pronounced and primitive democracy at the north meant more restriction. So early as August 5, 1644, he sought alliance secretly with Massachusetts or Plymouth, writing thus to Winthrop: "Now the truth is I desire to have such alliance with yourselves or Plymouth, one or both, as might be safe for us all, I having these in trust on the island. . ... I want counsel and strength to effect what I desire. .... Bury what I write in deep silence." Massachusetts for the time being hesi- tated to initiate action so clearly defiant of the home government as would be a union with Aquidneck, and Coddington was advised to subject himself, which would place the respon- sibility upon him. Then Coddington hesitated. Plymouth, on the other hand, asserted a claim to Aquidneck which had been negatived in 1638, and sent an agent to make a house-to- house canvass on the island against acceptance of the patent. Such negative action lay within the authority granted "to rule themselves"; it would place the responsibility for failure on Aquidneck rather than Plymouth.
THE BOGUS NARRAGANSETT PATENT-Eventually Massachusetts entered the field, set- ting up a claim to Providence under an extension of the Massachusetts patent alleged to have
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been obtained on December 10, 1643, and sent to Boston in 1645. Known as the Narragan- sett Patent, negotiations for it had been conducted in London by Rev. Thomas Welde and Rev. Hugh Peters. It bore the signatures of nine members of the colonial board associated with the Earl of Warwick, which was less than a majority of the eighteen members. War- wick subsequently denied that it ever had been before the board,* a statement that warrants the assumption that the patent, if not a forgery, had been presented to members of the board individually for signature, a practice sometimes resorted to in defiance of the law that a board has no power to act except as a body when in session. Massachusetts no doubt would have made a more vigorous effort to enforce the Narragansett Patent had the shrewd and unscrupulous men in control of the government there had reasonable assurance that the instrument was valid. A message sent to Rhode Island requesting the people to "forbear the exercise of government" under the charter had elicited an answer, drafted at Newport August 6, 1645, and signed "The Colony of Providence Plantations, Henry Walton, Secretary," which repeated the familiar declaration of liberty of conscience, and asserted a right to act under the patent.
First, a civil government we honor, and earnestly desire to live in, for all those good ends which are attainable thereby, both of public and private nature.
This desire caused us humbly to sue for a charter from our mother state. Not that formerly or now we approve and honor not your civil state and government, but as we believe your consciences are persuaded to govern our souls as well as our bodies, yourselves will say we have cause to endeavor to preserve our souls and liberties, which your consciences most necessarily deprive us of, and either cause great distrac- tions and molestations to us at home or cause our farther removals and miseries.
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