USA > Rhode Island > Rhode Island : three centuries of democracy, Vol. I > Part 15
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Thirdly we cannot but wonder that being now found in the possession of government from the same authority, unto which you and we are equally subject, you should desire us to forbear the exercise of such a government without an expression from that authority directed to us. . . .
We see not how we may yield ourselves delinquents and liable to answer in your country, as your writing to us seems to impart, while we cast not away such noble favor and grace unto us.
The letter announced a purpose to seek counsel and advice in England. The assertion of a right resting upon the Narragansett Patent was made by Massachusetts in a letter addressed to Roger Williams under date of August 27, 1645, as follows :
We received lately out of England a charter from the authority of the High Court of Parliament bearing date November 10, 1643, whereby the Narragansett Bay and a certain tract of land wherein Providence and the Island of Quidny are included, which we thought fit to give you and our other countrymen in these parts notice of, that you may forbear to exercise any jurisdiction therein, otherwise to appear at our next General Court, to be holden on the fourth day of October, to show by what right you claim any such jurisdiction; for which purpose yourself and others your neighbors shall have free liberty to come, stay and return, as the occasion of the said business shall require.
The tone of the letter sent to Roger Williams was altogether too mild in tone to be con- sistent with a well-founded right and the vigorous action usually taken by Massachusetts to make might suffice where right was wanting. The reply by Roger Williams was so adequate to the situation as to terminate the correspondence; Massachusetts did not answer his letter, nor urge seriously thereafter a claim under the Narragansett Patent.
What happened in Rhode Island between September, 1644, and May 19, 1647, for the most part is matter for conjecture, resting upon other sources of information, and these fragmentary, than records. The letters signed for the "Colony of Providence Plantations assembled at Newport August 9, 1645," by Henry Walton, "Secretary," is suggestive that an organization was in existence on that date. Samuel Gorton, in 1646, wrote: "With all expe- dition an orderly and joint course was held, for the investing of the people into the power and liberties thereof unanimously, for the exercise of the authority, in the execution of laws,
*Two Rhode Island Colonial Records, 1621.
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for the good and quiet of the people, which thing gave great encouragement unto the planters, to go on in their employments, hoping to enjoy their lawful rights and privileges without disturbance, which the Massachusetts, together with Plymouth, understanding, they go about by all means to discourage the people, by their endeavoring to weaken and invalid the author- ity of the Charter in the eyes of the country." Gorton's statement that the planters were encouraged to go on with their employments refers to himself and his associates, who left their temporary domiciles at Aquidneck and returned to Shawomet as soon as the charter was granted. His reference to "an orderly and joint course" may indicate either an orderly pro- cedure in preparation for the achievement of an organization, or assuming the possibility of error in a word, not unusual in view of the license with respect to spelling that is characteristic of documents of the period, and that the correct rendering is "an orderly and joint court," that at least a preliminary organization had been achieved. The latter construction, that is that "an orderly and joint court was held" agrees with the fact that may be assumed from the signature to the letter of August 9, 1645; a reference by Roger Williams to himself as the "chief officer" of the colony, and a reference to "commissioners" in a letter written by Coddington to Winthrop November 11, 1646, which contains the following: "The commis- sioners have joined them (referring to Gorton and the Shawomet men) in the same charter, though we maintain the government as before." Who were the commissioners, and by what authority did they function if there was not at least a preliminary organization? The letter of Coddington indicates that he, in pursuance of his wish for association with Massachusetts, and others with him were holding out, and delaying a perfected organization. This was postponed until 1647.
THOROUGH ORGANIZATION IN 1647-That careful preparation for the General Court of 1647 had been made by commissioners or committees is evidenced by the elaborate code of laws adopted. Complete in the sense of comprehensiveness, discreet in the sense of selection or omission of subjects relevant or irrelevant to frontier colonial conditions, reinforced with citation of English statutes, this code was not the casual product of a general meeting of freemen. Further evidence that the code had been prepared in advance appears in the vote taken early in the meeting at Portsmouth "that we do all own and submit to the laws, as they are contracted in the bulk, with the administration of justice according thereto, which are to stand in force till the next general court of elections, and every town to have a copy of them, and then to present what shall appear therein not to be suitable to the constitution of the place, and then to amend it." There is also evidence that, while an agenda had been outlined, the program had not been prepared in advance with so much certainty that it required only ovine ratification. The instructions given by the town of Providence to ten freemen chosen to represent the town in a committee meeting of ten from each town at Newport on May 18, the day preceding the General Court, indicate that much remained to be determined. The ten freemen were given full power and authority "to act and vote for us respectively or otherwise as if we ourselves were in person for the settling of this General Court for the present, and for the composing of it into any figure for the future, as cause shall require"; to vote in the choice of general officers; to continue as ten representatives if ten should be the number chosen for each town, or to reduce the number by selection amongst themselves if a smaller number should be agreed upon. The town of Providence also instructed its rep- resentatives as to certain things wished by the town, thus: (1) a true copy of the Charter ; (2) government by the common law so far as it was adaptable to conditions, "desiring to hold a correspondency with the whole colony in that model that hath been lately shown unto us by our worthy friends of the island"; (3) local autonomy in town affairs; (4) freedom in the choice of town officers, with clear definition of the jurisdiction of general and town officers ; (5) an exact and orderly way for appeals to the General Court; (6) "that each town should R. I .--- 6
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have a charter of civil incorporation, apart, for the transaction of particular affairs." These instructions were signed by Roger Williams as moderator. Associated with him as represen- tatives were Gregory Dexter, William Wickenden, Thomas Olney, Robert Williams, Richard Waterman, William Field, John Green, John Smith and John Lippitt.
The general court of election "for the colony and province of Providence" of 1647 was held at Portsmouth on May 19, 20, 21. John Coggeshall was chosen as moderator, and it was found that the "major part of the colony was present, .... whereby there was full power to transact." The General Court on this occasion was in fact a general assembly of freemen. Advantage of this was taken by an agreement that all "should set their hands to an engagement to the charter," as evidence that it had been accepted by the body of freemen. In view of the likelihood of departures under the circumstances of so large a gathering in a small town, it was agreed "in case the assembly depart unto the number of forty, those forty shall stay and act as if the whole were present and be of as full authority," and later it was ordered "that none shall go out of the court without leave; or if any do depart he shall leave his vote behind him, that his power remain, though his person be absent." It was planned that the general court of election should continue to be an annual general assembly, with provision for proxy voting, thus: "Further, it is agreed, that forasmuch as many may be necessarily detained, that they cannot come to the general court of election, that then they shall send their votes sealed up unto said court, which shall be as effectual as their personal appearance." Other meetings of the General Court were to be by delegates chosen in the towns as "a committee for the transaction of affairs there .... and such as go not, may send their votes sealed." This and the arrangement for the general court of election annually on the first Tuesday after the fifteenth of May, "if wind and weather hinder not," indicate a respect for personal convenience and a recognition of the difficulties of travel along the waterway that connected the otherwise widely separated settlements. The request of Provi- dence for the common law, as already adopted on the island, was granted, and Warwick was admitted to the same privileges as Providence.
Officers were elected by paper ballot as follows: John Coggeshall of Newport, as Presi- dent; Roger Williams of Providence, John Sanford of Portsmouth, William Coddington of Newport, and Randall Holden of Warwick, as Assistants; William Dyer of Newport, as General Recorder, and Jeremy Clarke of Newport, as Treasurer. The engagement of officers was unique in that it omitted swearing by oath, pledged the officer not only to fulfill the duties of his office but also not to exceed them, and was reciprocal in the sense that the offi- cer's engagement was followed by a pledge of the freemen to support him in the faithful per- formance of his duties, thus: "You, A. B- -- , being called and chosen unto public employ- ment, and the office of -, by the free vote and consent of the inhabitants of the Province of Providence Plantations (now orderly met), do, in the present Assembly, engage yourself faithfully and truly to the utmost of your power to execute the commission committed unto you ; and do hereby promise to do neither more nor less in that respect than that which the colony authorized you to do according to the best of your understanding." "We, the inhabi- tants of the Province of Providence Plantations being here orderly met, and having by free vote chosen you to public office and 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 hereof." The omission of an oath from the engagement is attributed to Roger Williams, rather than to Quaker influence ; it sustained one of his contentions in Massachusetts. The emphasis upon the officer's obligation not to exceed his legal power and not to usurp authority, and the recip- rocal engagement by freemen to support him are characteristic of the extraordinary exempli- fication of the original type of democracy fashioned at this General Court. The initiative and referendum, devices used in only the most advanced form of popular government even in
ALONG THE WATERFRONT, LOOKING NORTH, JAMESTOWN
THE OLD EIGHT-WINGED WINDMILL, NEAR NEWPORT
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the twentieth century, were ordered, though not named, in the plan for government outlined at Portsmouth.
The popular initiative appears in the provision that "a case" might be propounded, agitated and fully discussed in town meeting and concluded by vote; copies sent "to the other three towns, who shall agitate the case likewise in each town and vote it, and collect the votes." The votes were to be certified to a committee of the General Court for canvass and counting, who "finding the major part of the colony concurring in the case, it shall stand for a law till the next General Assembly of all the people, then and there to be considered whether any longer to stand yea or no." A general court consisting of six men of each town freely chosen, also could initiate a proposal "for the public ideal and good of the whole," and "fully debate, discuss and determine the matter among themselves," and send it for referendum to the towns. The votes on such propositions taken in the towns were to be sealed up and sent to the General Recorder "who, in the presence of the President shall open the votes, and if the major vote determine the case, it shall stand as a law till the next General Assembly, then and there to be confirmed or nullified."
Other matters of general colony welfare determined at this meeting included: (1) Provision for general trial courts and quarterly session courts; (2) the adoption of a "seal of the province," to be an anchor; (3) adoption of admiralty laws, called "the Laws of Oleron"; (4) an order for the raising of £ 100 to repay Roger Williams for his expenses involved in procuring the charter; (5) the placing of detached settlements under the juris- diction of the towns, as follows: Prudence Island with Portsmouth, trading houses along the Bay with Newport, Pawtuxet to choose Providence, Portsmouth or Newport; (6) sub- jecting Dutch, French and other aliens, and English residing among them, to customs and duties on articles imported, except beaver, and excluding them from trade with the Indians; (7) forbidding the sale, gift or delivery of arms to Indians, or the repair of Indian guns by residents. With reference to the four towns the General Court ordered: (1) Town councils in each, consisting of six men; (2) town officers, including town surveyors of highways in each to mend roads and record the export of cattle, viewers of goats and swine slaughtered to record the "earmarks"; (3) organization and discipline of the militia; (4) engagement of town officers by the general officer (Assistant) in the town; (5) copies of laws and orders for the towns.
The body of general laws adopted was preceded by a compact signed by the freemen, which, in spite of its brevity, might be considered a Constitution and Bill of Rights. Some of the more significant provisions follow :
We do jointly agree to incorporate ourselves, and so to remain a body politic . and therefore do declare to own ourselves and one another to be members of the same body, and to have right to the freedom and privileges thereof by subscribing our names to these words following :
We, whose names are here underwritten, do engage ourselves to the utmost of our estates and strength, to maintain the authority and to enjoy the liberty granted to us by our charter, in the extent of it according to the letter, and to maintain each other by the same authority in his lawful right and liberty. . .
It is agreed, by this present assembly, thus incorporate, and by this present act declared, that the form of government established in Providence Plantations 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.
And now to the end that we may give, each to other (notwithstanding our different consciences touching the truth as it is in Jesus, whereof, upon the point we all make mention), as good and hopeful assurance as we are able, touching each man's peaceable and quiet enjoyment of his lawful right and liberty, we do agree unto, and by the authority above said, enact, establish and confirm these orders following :
That no person in this colony shall be taken or imprisoned, or be disseized of his lands or liberties, or be exiled, or any otherwise molested or destroyed, but by the lawful judgment of his peers, or by some known law, and according to the letter of it, ratified and confirmed by the major part of the General Assembly. lawfully met and orderly managed.
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That no person shall (but at his great peril) presume to bear or execute any office that is not lawfully called to it, and confirmed in it; nor though he be lawfully called and confirmed, presume to do more or less than those that had power to call him, or did authorize him to do.
That no Assembly shall have power to constitute any laws for the binding of others, or to ordain officers for the execution thereof but such as are founded upon the charter and rightly derived from the General Assembly lawfully met and orderly managed.
That no person be employed in any service for the public administration of justice and judgment upon offenders, or between man and man, without good encouragement and due satisfaction from the public, either out of the common stock or out of the stocks of those that have occasioned his service; that so, those that are able to serve may not be unwilling, and those that are able and willing may not be disabled by being overburdened. And then, in case a man be called unto office by a lawful assembly and refuse to bear office, or be called by an officer to assist in the execution of his office and refuse to assist him, he shall forfeit as much again as his wages would have amounted unto, or be otherwise fined by the judgment of his peers, and to pay his fine as forfeiture, unless the colony or that lawful assembly release him. But in case of eminent danger, no man shall refuse. . To the end that we may show ourselves not only unwilling that our popularity should prove (as some conjecture it will) an anarchy, and so a common tyranny, but willing and exceedingly desirous to preserve every man safe in his person, name and estate; and to show ourselves in so doing to be also under authority by keeping within the verges and limits prescribed us in our charter . . . . we do agree . . to make such laws and constitutions so conformable, etc., or rather to make those laws ours, and better known among us; that is to say, such of them and so far as the nature and constitution of our place will admit.
Thereafter followed definitions of crimes and statements of penalties. While some of the penalties would be classified as "cruel and unusual" in this twentieth century, certain alleviations were introduced. Thus, petty treason did not involve an attaint of blood nor forfeiture of land, the familiar "The father to the bough, the son to the plow" exemption in Kent being adopted. Assault and battery were punishable, and yet "a father, master, school- master, keeper, may with moderation correct those that are under them." The code included so much of the statute of frauds as required contracts "of great amount" to be in writing and witnessed; indentures of apprenticeship or service to be recorded; avoiding fraudulent con- veyances to cheat creditors; transfer of title to land by bargain and sale, written, indented, sealed and enrolled in town meeting or before the town council, and recorded. The novelty of the latter procedure lay in the public enrollment, which practically added a public announce- ment and record in the town procedure to the modern requirement of recording with evidence of title. Acknowledgment before a notary public or justice of the peace replaces the older pro- cedure before town meeting or town council. Debts could be recovered by action of debt, with seizure of goods, lands or debts for the payment thereof ; in default of tangible assets a schedule of installment payments was to be arranged, but no debtor was to "be sent to prison, there to lie languishing to no man's advantage, unless he refuse to appear or stand to their order." Marriage was made a civil contract, the banns to be published in two several meetings of the townsmen, and confirmed before the head officer of the town and entered in the town clerk's book. Provision was made for probate of wills and administration of intes- tate estates.
The General Court also adopted a code of laws dealing with the organization of the government, and lawful procedure. A court of trials for the whole colony, consisting of the President and Assistants, was established, its jurisdiction including trial of cases involving serious crimes, cases certified by town councils as "weighty," cases between town and town, or between residents of different towns, and matters not assigned to towns. The colony offi- cers were to be chosen annually by paper ballot. "For President, Recorder, Treasurer and Sergeant, each town shall present one; . ... for Assistant each town shall present two." A majority elected in each instance, except that, as the Assistants were chosen one for each town, the person named by the town having the greater vote was elected. Each Assistant
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was a justice of the peace for his town, with power to suppress disturbance, and quell riot or unlawful assembly ; he was also a town coroner. The Recorder anticipated the modern Sec- retary of State; he was archivist and keeper of records, with direction to keep the original purchase deeds, the charter and other important documents "in a strong chest having four several locks annexed thereto, and that each town keep a key thereof, that so, as there is a common right and interest therein, there may be no access to them in a divided way (lest also they be divided) but with a common consent." The Recorder was also clerk of the court. The Treasurer's duties included collecting and holding the revenues and reporting receipts to the General Assembly. The Sergeant, required to be "an able man of estate," performed the functions of a sheriff.
Indictment or presentment by a grand jury of twelve or sixteen "honest and lawful men" must precede trial for any capital or infamous crime. For jury service the townsmen were required to choose and send to the General Court "three of the most sufficient and least suspicious persons," the panel to be complete and available for examination by persons inter- ested four days before the session; and it was ordered that jurymen "be chosen by neither old men above seventy years, nor mean men, nor such as have a charter of exemption, nor an indictor, nor interested in the deliverance of an indictee." Jury service was limited to men "clearly worth forty pounds" in colony trials; to men "clearly worth twenty pounds" in town trials. Challenges of jurymen were permitted, and panels were filled up "by such among those that stand about or that live in the same town." The practice of drawing jurymen from court loiterers (tending to become professional jurymen) was abolished subsequently in Rhode Island and in some other states. Appearance in court might be personal or by attor- ney, who might be the pleader's own attorney or one of two "discreet, honest and able men for understanding chosen by the townsmen of the same town and solemnly engaged by the head officer thereof not to use any manner of deceit to beguile either court or party." Court procedure included pleading by declaration and plea or demurrer until an issue was joined, and then a trial on the issue. The trial court was ordered, "as that which adds to the comely and commendable order of the court," to assemble and sit in the public session at eight o'clock in the morning. The eleven o'clock assembly of the Rhode Island Supreme Court in the twentieth century follows a time schedule to accommodate attorneys, thus: Municipal police courts, eight o'clock; district courts, nine o'clock; Superior court, ten o'clock; Supreme court, eleven o'clock. An attorney may be excused by a lower court for attendance upon the session of a higher court. The General Assembly had the right to impeach and try officers of the colony and the towns. The island of Rhode Island, and the two island towns were granted "full power and authority, either jointly or apart, to constitute such particular orders, penalties and officers as may more nearly concern either town apart, or the island jointly." The General Assembly also established a table of fees for courts and officers.
The outstanding provisions in the work of this remarkable General Court of 1647 were: (I) the declaration that the form of government is "democratical," that is held by the free and voluntary consent of all; (2) the guarantees of liberty and property; (3) insistence on the letter of law in the definition of crimes; (4) insistence upon the charter as a limitation upon the legislative power, forecasting the Constitution as "the supreme law of the land"; (5) omission of an oath from the engagement of officers, and provision for "solemn profes- sion" as a substitute for oath in testimony; (6) provision for the initiative and referendum ; (7) the protection of liberty of conscience in these words: "These are the laws that concern all men, and these are the penalties thereof, which, by the common consent, are ratified and established throughout the whole colony; and, otherwise than thus which is herein forbidden, all men may walk as their consciences persuade them, everyone in the name of his God. And let the Saints of the Most High walk in this colony without molestation in the name of Jehovah, their God." The organization was workable, the system of laws was essentially
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