USA > Rhode Island > Rhode Island : three centuries of democracy, Vol. I > Part 29
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ROYALIST MALCONTENTS-Henry Bull, elected Governor in 1685, was engaged as Gov- ernor and "also engaged to the acts for the encouraging of trade and navigation." For twelve years thereafter, including the years of the usurpation of Andros in which there was no inauguration of a governor in Rhode Island, the trade and navigation acts were not men- tioned in the records of the General Assembly. Under date of April 22, 1697, King William in a proclamation ordered "a strict and punctual observance of the several laws in force" under penalty that "by any wilful fault or neglect on your part we shall look upon it as an infraction of those laws tending to the forfeiture of our letters patents for the government of that our said colony." The royalist party in Rhode Island at that time seized upon the trade and navigation acts as a pretext for complaints to the mother country. Francis Brin- ley, Peleg Sanford and Jahleel Brenton became active. Peleg Sanford complained to the English Board of Trade that Governor Walter Clarke had taken possession of a commission
issued to Sanford as judge of the court of admiralty, on pretext of presenting it to the Gen- eral Assembly, and subsequently had refused to engage Sanford as judge by oath and to return the commission, though it was demanded several times. Sanford, Brinley and Bren- ton complained to the King that Governor Clarke refused to take the oath to enforce the trade and navigation acts, thus: "That on the seventeenth day of this, present month of January (1697-1698), at the town of Newport .... we went to the dwelling house of Walter Clarke, Governor . ... and did then and there show to the said Walter Clarke your majesty's said commission, and the oath which is mentioned in it, and wrote down after the said commission ; and did also offer and tender to the said Walter Clarke the said oath, which oath the said Walter Clarke did positively refuse to take." The relation alleged a second
CITY HALL, NEWPORT
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unsuccessful attempt to persuade Clarke to take the oath on January 21. Jahleel Brenton also reported to the English Board of Trade (1) that Governor Clarke "(who is a Quaker) hath refused to take" the oath to enforce the trade and navigation act; (2) that Governor Clarke had refused to administer the oath as judge of the court of admiralty to Peleg San- ford, and had withheld Sanford's commission; (3) that Governor Clarke had refused to subscribe the "association which is required by the act made for the better security of his majesty's royal person and government, though the same was generally subscribed by others in that colony at that time." This subject was removed from controversy by the election of Samuel Cranston as Governor. Governor Cranston was elected Governor of Rhode Island thirty times annually and took the oath to enforce the trade and navigation acts as many times as he was elected and engaged as Governor.
A fresh pretext for agitation by the royalist party, still pursuing its favorite project of discrediting and destroying the Charter government and reducing Rhode Island from its proud position as a republic to the status of a royal province, was mentioned in Jahleel Bren- ton's letter of March 8, 1697-1698, thus: "And I further beg leave to acquaint your lordships that I am humbly of opinion it would much conduce to his majesty's service and the good of his subjects in the colony of Rhode Island that the government of that colony were com- manded to print all such laws as have been there made and are now in force. For they are so meanly kept and in such blotted and defaced books (having never yet, any of them, been printed), that few of his majesty's subjects there are at present able to know what they are." Randolph, in the same year, renewed his fight against Rhode Island, thus: "Walter Clarke, a Quaker, being several years Governor, quitted the place because he would not take the oath enjoined him by the acts of trade. ... But the management of the government (such as it is) is in the hands of Quakers and Anabaptists. Neither judges, juries or witnesses are under any obligation, so that all things are managed according to their will and interest. . The House of Deputies, being the lawmakers, take no oath nor engagements. . . . I humbly move your lordships to order that an authentic copy be made of all the laws of Rhode Island, now kept on loose papers, and transmitted to your lordships (after they have been truly examined and compared by Colonel Peleg Sanford, judge of his majesty's court of admiralty, and Mr. Francis Brinley, men of great estate in that government), by which their ignorance in making, and their arbitrary execution of these laws will most evidently demon- strate that they are no way capable to govern the people in that colony." The Randolph letter contained also charges of connivance at piracy, and this paragraph: "There are a great many men of good estates in Rhode Island, groaning under the oppression of this lawless govern- ment, who would do his majesty faithful service if either put under his immediate govern- ment or annexed to the province of the Massachusetts Bay. They have offered to allow £ 500 per annum toward the support of a person appointed by his majesty to be governor over them." Not all the rich men of Rhode Island, nevertheless, were thus at odds with the shaggy democracy.
The English Board of Trade on February 23, 1697-1698, had ordered Rhode Island "to transmit unto us authentic copies of all the acts or laws" of the colony; and the General Assembly had appointed a committee of three, which it subsequently increased to six, "for abbreviating and bringing into a body the acts of Assembly, in order to be sent home with all expedition according to their lordships' commands." The committee was ordered to report at the October session, and the Assembly voted "for their encouragement to allow them such salary as may be convenient, with their reasonable expense in said affair." At the October ses- sion it appeared that "through the remoteness of the persons so appointed and the difficultness of their coming together, it has been wholly neglected," and the Governor, the Assistants of New- port and the Recorder, with "such further assistance as they shall think needful" were ordered "to make what expedition they can for the perfecting what is needful in said laws." The work
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of the Governor and Assistants, in preparing a transcript of the laws, which was forwarded on May 27, 1699, did not satisfy the Board of Trade. Their comment follows :
We required of you authentic copies of all the acts or laws in force in the colony of Rhode Island and Providence Plantations, by which you should have understood a fair transcript of all the said laws, fastened together by the public seal of the colony, and so attested by the proper officer; but instead thereof, you have sent us some leaves of paper stitched together, but without any seal, and attested by Weston Clarke* to be a true abstract of your laws, which (whatever is meant by it) in true signification is very different from a true copy.
But, admitting this was intended for a copy, and not an abbreviation or abstract only, yet the blots in some places, the blanks in others, the want of sense in some expressions, the want of titles to the dif- ferent acts, and the disorderly placing of some of the acts (those of later dates before those of former) are such marks of negligence that we can by no means depend thereupon; and therefore we are again obliged to repeat our former directions that you fail not to send us, with all possible diligence, a perfect copy of all your laws, in authentic form, under the public seal.
The Earl of Bellemont, commissioned on March 9, 1698-1699 to conduct a special inquiry in Rhode Island in order to procure "full and legal evidence of the misdemeanors of the Governor and Company," was directed, along with other things, to obtain "authentic copies of all the acts of their General Assemblies, which are now in force amongst them, as also of the journals of their public proceedings, as also of other public records, registers, or entries, relating to the administration of that government, which may best tend to discover the disorders and irregularities countenanced or practised in it." The Governor presented Bellemont's request for the copies indicated to the General Assembly on October 25, 1699, and the Assembly appointed a fresh committee with "full power by virtue of this act to inspect into the transcription of all and every the before premised laws and acts of the Assem- bly, and to make returns to the next adjournment." At the November session it appeared that the last committee had made up a list of acts to be continued and of acts to be repealed as the basis for making a report of all the laws actually in force; the action of the General Assembly was practically tantamount to the adoption of a complete revision, conforming to the modern practice of enacting the body of general laws reported by a revision commis- sion as a new statute. The law of November, 1699, provided:
That all acts by the committee returned, suitable to be continued, as is mentioned in their list, reference thereunto being had in the Recorder's office, are hereby continued and confirmed, with all the acts in the first transcript, a copy of which was sent to their lordships, as abovesaid, are to be continued, confirmed and be observed, and shall be deemed to be the whole body of laws to be observed in this his majesty's colony, aforesaid; and all other laws and acts of said colony, except such as are made touching titles of land, to be from henceforth repealed; and more particularly those acts mentioned on a list returned by said committee to be repealed, made null and void, and of no effect, any law or act, clause or clauses, to the contrary in any wise notwithstanding.
Governor Cranston disregarded Francis Brinley, Peleg Sanford, Nathaniel Coddington, Caleb Arnold and Josias Arnold, whom Bellemont designated to continue certain inquiries opened by him in his visit, and sent the new digest of the laws directly to Bellemont by messenger, thus snubbing the royalists and arousing their wrath. Some of them immediately denounced the digest as incomplete for failure to include certain laws and incorrect for including other "laws" never enacted by the General Assembly. Brinley, Coddington and Sanford wrote to Bellemont on December 23:
This day we went to the Governor for a copy of their laws . . . . but were surprised at his answer that he had sent them yesterday to your lordship, thereby breaking his word with us (who were often with him) to give us notice when they were transcribed, to receive them. We are well satisfied
*Recorder.
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that they are not transcribed as they stand on record, and know some of them are not; and in particular that act forbidding any meeting in the court house for religious meetings,* and have sent that for an act of the Assembly to your lordship which the Assembly never passed. There are more acts, perhaps one- third or more, that they send not unto your lordship, having thrown them aside, and passed an act that those sent are our own body of laws, to the deception of his majesty and the grievance of the subjects, who have suffered and have been kept in bondage under laws they are ashamed should be seen. They have put a wrong date to those acts they have sent to his majesty to make them more authentic; they begin them 1665, after they had a Charter, but most of them were made twenty years before they had any power or author- ity to be a government; and were condemned by act of Parliament after the King came to England, in general among other matters when they received power from his majesty by Charter to govern the people of this place. They never renewed their laws, nor passed any act for their establishment, but proceeded to govern by them as authentic and good .¡ We dare not presume to give your lordship a further account of our miscarriages, for fear our report should not gain credit with your lordship; our enormities being so great and numerous, may surpass belief. We have a great desire your lordship should command our laws should be publicly seen from one end to the other, that your lordship may be satisfied that we complain not without a cause, and that as we are we are not fit nor capable to be a government.
Brinley wrote again to Bellemont three days later: "I have since seen their additional acts, some whereof have been repealed, some altered and some made new. Amongst them is an act made in April, 1672, chiefly against the Quakers, by a ruling power that had no favor for them, but was so ill-resented by the people in general that they were ready to break forth into disorder, had not the court of election been near .; They then agreed to turn out of place those that were the cause of that act, so prejudicial to the liberties and privileges of the people in general; and accordingly turned them out and put others in their rooms, choosing a Quaker to be their Governor and other Quakers in other places of government, whereof Walter Clarke was one upon their sitting. They repealed that severe act of whipping, fining and imprisonment for speaking a word or two, as illegal and arbitrary, a copy of which act and repeal is enclosed; they have now inserted it amongst the laws sent to your lordship, with a preface, and would have that pass now for a law, that they some years ago condemned as illegal. .... "
Brinley wrote again on December 31 : "I cannot omit to acquaint your lordship of the deception our authorities have put upon the Lords Commissioners of Trade and Plantations, as also your lordship and the inhabitants of this colony in sending a transcript of our laws, which are not authentic copies of the original laws and acts in this colony ; the greatest part being altered and much varying from them, and passing an act November 21 last to impose them on the King's liege subjects here inhabiting to be the whole body of our laws to be observed in this colony, which said acts not being authentic copies, and as they stand tran- scribed were never made by our lawmaking assemblies . and by the aforesaid act of November 21 they have repealed all the rest of their laws, which are double to what they have sent.
Bellemont's own opinion of the transcript of laws sent to him appeared in a letter sent by him to the Board of Trade early in January, 1699-1700: "I received not the laws of Rhode Island till the twenty-third of last month, which I now transmit to your lordships; it seems that government have taken all this time to prune and polish 'em. And yet after all, I believe the world never saw such a parcel of fustian." The General Assembly in May, 1700, ordered the Governor and Assistants of Newport to "take care for the transcribing the laws of this colony into a true form and method, in a regular manner, that they may be sent to their lord- ships, under the seal of the colony, as soon as possible it can conveniently be done."
*Passed July, 1695. Probably Church of England services.
+Not entirely true. The King's commissioner had asked only that laws derogatory to his majesty the King be repealed. #Supra.
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It is possible that in the confusion in transcribing and revising laws at this period may be found an explanation of a law printed in the digests of 1719, 1731 and 1767, of the enact- ment of which there is no record in the proceedings of the General Assembly. This act, pur- porting to have been enacted in 1664, reads thus :
That all men (professing Christianity, and) of competent estates, and of civil conversation, who acknowledge and are obedient to the civil magistrate, though of different judgment in religious affairs (Roman Catholics only excepted) shall be admitted freemen, and shall have liberty to choose and be chosen officers in the colony, both military and civil.
The evidence against the enactment of such a statute in 1664 or in the earlier years of the colony appears (I) in the fact that the Assembly of 1664 in a statute relating to Block Island specifically repeated the words of the charter verbatim: "That no person within the said colony at any time hereafter, shall be in any ways molested, punished, disquieted or called in question for any difference of opinion in matters of religion, and do not actually disturb the civil peace of the said colony"; (2) in the answer of the colony to the King's commissioner in 1665 to the second and third requests: "that all men of competent estates and of civil conversation who acknowledge and are obedient to the civil magistrate, though of differing judgments, may be admitted to be freemen, and have liberty to choose and be chosen officers, both civil and military," and that liberty to practice the orthodox religion be permit- ted, that "men of competent estates, civil conversation and obedient to the civil magistrate shall be admitted freemen of this colony upon their express desire" and "that as it has been a prin- ciple held forth and maintained in this colony from the very beginning thereof, so it is much in their hearts to preserve the same liberty to all persons within this colony forever as to the worship of God"; (3) in the report of the King's commissioners in 1665, that "they admit all to be freemen who desire it," and "they allow liberty of conscience and worship to all who live civilly"; (4) in the commission issued for the conservation of the peace in the King's Province in 1669, "and furthermore, it is to be observed, that each person in the said province is to enjoy the free exercise of his conscience in religious worship, as by the Charter is allowed to the whole colony"; (5) in the fact that the discriminatory statute was not in the hand written digest of 1705. There were neither Hebrews nor Catholics living in the colony of Rhode Island in 1664 to occasion explicit exclusion from political citizenship. Certainly it appears to be altogether improbable that the restriction of political rights to Protestants only was enacted into law while both Roger Williams and John Clarke, and many of the men of the same generation, were still living. The political expediency that suggested a complete revision of the laws of the colony in anticipation of sending a true and authentic copy to Bellemont and the English Board of Trade may have counselled also a concession to the drastic laws of the kingdom against Catholics in force and enforced in England, Ireland and Scotland following the accession of William and Mary. The revolution of 1688 in England was precipitated by the declaration of James II for liberty of conscience to all, including Catholics. Ten years earlier Catholics had been excluded from Parliament and all offices in the government by an act that was not repealed until 150 years later. The government of England, with officers recruited exclusively from Protestants, was aggressively Protestant while William III was King. It might be true that the hand that traced an "authentic copy" of the laws of Rhode Island to meet the exigencies of the situation involved in the ill- concealed hostility of Bellemont inserted the words enclosed in parenthesis "(professing Christianity and)" and "(Roman Catholics only excepted)," lest the omission of restriction be counted an offence by Bellemont in view of drastic restriction in England. Bellemont might well point to a law permitting political citizenship without a religious test, as repugnant to the laws of England. It is also possible, however, that the particular statute as it appeared in printed form in 1719 embodied in the statute law an ancient custom, modified by the Rhode Island statute of August 29, 1700, "that where the laws of this colony or custom shall not
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reach or comprehend any matter, cause or causes, that it shall be lawful to put in execution the laws of England, etc., any act or acts to the contrary notwithstanding." The statute, modified by the restriction, would be consistent with English statutes excluding Catholics and Hebrews from political privileges. Certainly the statute affected few persons up to 1719. There were Hebrews in the colony, living under an Assembly order assuring them against molestation, so early as 1684; the date of earliest arrival of Catholics was not recorded. The restrictive statute did not conform to Rhode Island principles, in spite of the argument that might be made to the general effect that a guaranty of liberty of conscience and against moles- tation because of religious opinion need not be extended from the negative aspects of non- interference to a positive assurance of equal rights; that is, that a state might proclaim toleration without offering privileges without discrimination. The fact that no record of enactment has been found tends to support the theory that the statute in restrictive form was inserted in the copy of the laws sent to Bellemont in the first instance as a matter of expediency, to avoid the ingenuity of a creature of Bellemont's character in finding evil in everything good that was related to Rhode Island. Probably it was retained in the printed laws for similar reasons, in view of the marked intolerance prevailing in the mother country. The record would be finer if no law of the kind had ever been found in Rhode Island. At the close of the seventeenth century Rhode Island was engaged in a struggle for continued existence as a republic, and desperate measures were necessary to combat the forces that sought to bring the "lively experiment" to an early suspension. To the credit of Rhode Island it should be noted here that the General Assembly in 1783, immediately after receiving news of the sign- ing of an armistice ending the Revolutionary War and assuring independence repealed the act. Rhode Island no longer was under any obligation to enforce the English statutes denying political rights because of religion.
BELLEMONT MAKES CHARGES --- Under date of November 27, 1699, Bellemont sent to England twenty-five specific accusations against Rhode Island, to be used as the basis for action against the Charter by proceedings in quo warranto, in part as follows :
(1) They seem wholly to have neglected the royal intention, and their own professed declaration recited in the letters patent of their incorporation, "of Godly edifying themselves and one another in the holy Christian faith and worship, and for the gaining over and conversion of the poor ignorant Indian natives to the sincere profession of the same faith and worship." Upon which grounds they were granted to have and enjoy their judgments and conscience in matters of religious concernments, they behaving themselves peaceably and quietly, and not using this liberty to licentiousness and profaneness. In that they have never erected nor encouraged any schools of learning, or had the means of instruction by a learned orthodox ministry. The government being elective, has been kept in the hands of such who have strenuously opposed the same; and the generality of the people are shamefully ignorant, and all manner of licentiousness and profaneness does greatly abound, and is indulged within that government.
(2) They have not kept, nor do they use their name and style of incorporation, omitting therein the word "English" and the words "in America," they being incorporated by the name of the Governor and Company of the English Colony of Rhode Island and Providence Plantations in New England in America.
(3) Their charter requires a meeting of the General Assembly twice in every year. . . . Ofttimes they hold but one Assembly in the year. . . .
(4) Their Assembly is constituted of the Governor, Assistants, and Deputies, or representatives for the several towns; the sole power of calling them is in the Governor. And yet, according to their practice, it is in their pleasure whether the Governor shall preside or be moderator therein or not, which is told by a vote. And it sometimes, luckily, falls on his side.
(5) Their election of general officers is by proxies . . . . contrary to the rules of the Charter . which prescribes that the elections be made by such greater part of the company as shall be . present at the General Assembly.
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(6) Their military commissioned officers are elected by the soldiers. . . . Their Charter directs that such officers be appointed by the General Assembly. .
(7) In the year 1697 Walter Clarke, Esq., then Governor, made out a writ directed to the sheriff requiring him to issue forth warrants to the Assistants and justices of the several towns, that they meet and assemble to choose representatives to serve in the General Assembly. The Charter directs that the freemen be represented by persons of their own choosing in the several towns. And yet, some chosen by the town council (so called) consisting of some few particular men, have been admitted of the Assembly.
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