USA > Rhode Island > Rhode Island : three centuries of democracy, Vol. I > Part 30
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(8) In the same year, 1697, . . . Walter Clarke, Esq., in the General Assembly then sitting, did in the morning actually resign his place or office of Governor; then afterward finding that there wanted one to make up a quorum of the house of magistrates, resumed his place of Governor, sat and acted as such all that day, and adjourned the court at night.
(9) In May, 1699, a General Assembly was held and kept, no writ for calling or convening the same ever coming to the hand of the sheriff or his deputy.
(10) An act was published under the public seal of the colony, as an act of the General Assembly, in the year 1696, which was not laid before nor put in the House of Deputies or representatives.
(II) The General Assembly assume a judicial power of hearing, trying and determining civil cases. . . . The Charter committed no judicial power and authority unto them; neither are the Deputies or representatives, which are the more numerous part of the General Assembly, under any oath or engagement. .
(12) They raise and levy taxes and assessments upon the people, there being no express authority in the Charter for so doing.
(13) They hear, try and judge capital offenders, and punish such with death, the Charter giving them no express authority. .
(14) They usurp and exercise an admiralty power and jurisdiction without having any such power contained in their Charter. .
(15) Their courts of justice are held by the Governor and Assistants, who sit as judges therein, more for the constituting of the court than for searching out the right of the causes coming before them or delivering their opinions on points of law (whereof it's said they know very little). They give no directions to the jury, nor sum up the evidence to them, pointing unto the issue which they are to try. Their proceedings are very unmethodical, no ways agreeable to the course and practice of the courts in England, and many times very arbitrary and contrary to the laws of the place, as is affirmed by the attorneys-at-law that have sometimes practised in their courts.
(16) Their General Attorney is a poor, illiterate mechanic, very ignorant, on whom they rely for his opinion and knowledge of the law.
(17) The Assistants
. . who are also justices of the peace, and judges of their courts, are generally Quakers and sectaries elected by the prevailing factions among them; illiterate and of little or no capacity, several of them not able to write their names, or at least so as to be read, unqualified to exercise their respected offices, not having taken the oaths. . . . John Greene, a brutish man, of very corrupt or no principles in religion, and generally known to be so by the people, is, notwithstanding, from year to year anew elected and continued in the place of Deputy Governor . . . . whilst several gentlemen most sufficient for estate, best capacitated and disposed for his majesty's service, are neglected, and no ways employed in any office or place in the government, but, on the contrary, maligned for their good affection to his majesty's service.
(18) The aforesaid Deputy Governor Greene, during the time of the late war, granted several sea commissions . . unto private men-of-war (otherwise pirates)
(19) The government is notoriously faulty in countenancing and harboring of pirates, .
(20) The Governor, Assistants, judges, justices, juries and witnesses that pass upon persons for life and death and the whole people are laid under no obligation of an oath . . . . but take only an engage- ment (so called) of their own framing, making no mention of God therein or appeal unto Him as witness of the truth of what they either promise or testify, subjecting themselves unto the peril and penalty of perjury, only.
(21) I am informed there are no journals or books of entry kept of their orders or acts passed in council.
(22) Divers of their acts and laws passed in the General Assembly, are not made and digested into any proper form or method, only framed by way of vote, and kept on loose scripts of paper, not entered
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into any rolls or books; and ofttimes not to be found when inquiry is made for them at the office, that the people are at loss to know what is law among them.
(23) I cannot obtain from them either the journals of the General Assembly, or the laws now in force . . . . the Governor himself acknowledging that the laws which they lately transmitted unto your lordships are but part of what are in force among them.
(24) Many of his majesty's good subjects inhabiting within the said colony and such as are best knowing in the laws of England, do grievously complain of oppression by the maladministration and illegal proceedings of those in the government.
(25) They are wilfully negligent and refuse to comply with or obey the King's commandments sent unto them.
Governor Cranston's speech made unto the General Assembly, called upon the notice I gave him of his majesty's commands unto myself, relating to that government (which is approved and applauded among them), gives some taste of the temper and disposition of the people, and discovers how they stand affected to the laws of England and his majesty's government ; basely insinuating it to be little better than bondage and slavery.
I apprehend his majesty is neither honored nor served by that government.
It is to be regretted that Governor Cranston's address to the General Assembly has not been preserved. If, as Bellemont asserted, it insinuated that his majesty's government was little better than bondage and slavery, it anticipated Samuel Adams and Patrick Henry by almost three-quarters of a century. Bellemont's diary or journal shows that he spent exactly one week in Rhode Island; he must have gathered so much evidence as he had to support any of the charges from the tales poured into his willing ears by the group of royalist syco- phants in Newport. Most of the accusations were trivial; even those that indicated devia- tion from strictly legal compliance with a very narrow interpretation of the Charter were not serious. Like many another Englishman since his period, including both Dickens and Thackeray, he ridiculed American customs because he was not capable of appreciating them. Himself a nobleman of culture, refinement and education, he could not understand how won- derworking was the lively experiment of popular government in Rhode Island. His strictures of illiteracy and ignorance, if literally true, rested upon the observance of conditions that were common among the mass of the plain people of his own generation. Bellemont could not fathom the possibly eternal verity of government resting not in the hands of the classes so much as in the hearts of the masses. His accusation that the people of Rhode Island had not encouraged any school of learning departed from the fact that the beginning of the American public school system was in Rhode Island in 1640. His accusation of profaneness and licentiousness might be interpreted, in the connection in which it was written, as meaning only that the people of Rhode Island were not orthodox in religion. Certainly a people who hesitated to use the name of deity in an oath probably were not profane in the sense connoted to that word in modern usage. It did not occur to Bellemont that the people of Rhode Island might have excellent reasons for keeping out of office men of the type of Brinley and San- ford, whose total unfitness was indicated by their disloyalty to Rhode Island. Three things saved Rhode Island in the crisis-the splendid carriage of Governor Cranston, whose letters to English officers were models for diplomacy and tact; the death of Bellemont in New York, March 5, 1700-1701 ; and the death of King William, 1702. William Penn, founder of Pennsylvania, became Rhode Island's English agent in 1702, with William Wharton as Solici- tor. Penn's influence was helpful in promoting a better opinion of Rhode Island in England. Penn's interest was heightened, no doubt, by Rhode Island's kindly treatment of the Quakers when all New England otherwise was hostile to them.
AN ERA OF BETTER RELATIONS-Meanwhile the General Assembly had undertaken to remedy several matters for complaint. The form of general laws was modified by the intro- duction of titles to acts. An engagement for Deputies was prescribed, including "true alle- giance to his majesty, his heirs and successors," and also "fidelity to this his majesty's Colony
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of Rhode Island and Providence Plantations, and the authority therein established, accord- ing to our Charter." It was enacted "that where the laws of this colony or customs shall not 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." "An act for sup- porting the Governor in the performance of his engagement to the acts of navigation" was passed. The act entitled "None to oppose General Assembly's acts" was repealed and made null and void. This act had been repealed in 1672, but it was included among the statutes reported as in force in 1699, and was referred to by Brinley as an act that had been repealed, but was reported as among those still in force. In 1703, the Governor, Major Nathaniel Coddington and Weston Clarke were "chosen a committee to draw out the colony laws and fit them for the press," and Abraham Anthony, Captain Nathaniel Sheffield, Richard Greene and Lieutenant James Brown, who had offered to see the laws printed, were authorized and empowered "to cause the said laws to be printed forthwith as soon as may be conveniently." The next year, because the Governor, "being concerned with much public business, could not well attend the premises," Major Henry Tew and Captain Joseph Sheffield were added to the committee "to finish the same with all expedition." In 1705, it appeared that the work of transcribing the laws and fitting them for the press had been "completed for the most part," and Major Coddington, Captain Joseph Sheffield, Lieutenant Joseph Jencks and Simon Smith were appointed "to view over and perfect said laws and likewise to procure said laws to be printed with all expedition .. . .. And said committee or such of them as shall be at the charge of printing said body of laws shall have the whole profit of the sale thereof, they allowing one copy for the colony's use." If the laws were printed in 1705, neither the one copy allowed for the colony's use nor any other has been found. Probably they were not printed. Another order for printing them was entered in 1706, and Governor Cranston, in 1708, referred to the laws as being made ready for the press. The laws were transcribed in 1705. In the archive of the state is a book, written by one hand, purporting to contain all the colony laws to 1705. The book was probably the work of the committee appointed in 1702 and continued to 1705.
King William III died and was succeeded by Queen Anne, 1702. Joseph Dudley, appointed Governor of Massachusetts in the same year, undertook to obtain control of the Rhode Island militia, renewing the project of Phipps ten years earlier. Dudley visited New- port with members of his council and a troop of horse, and was received courteously by Gov- ernor Cranston and the Assistants. Major Martindale, in command of the island militia, refused to call the latter to take an oath to support Dudley, maintaining that his commission was from the General Assembly. Governor Cranston gave Dudley little comfort. When the General Assembly met subsequently it asserted right under the Charter and Queen Mary's decision in 1692. Dudley encountered no opposition in the King's Province. Dudley's own story of his visit to Newport reflects the temper of Rhode Island at the moment as stead- fastly consistent. He wrote: "I told them I should proceed to review and settle the defects of their militia, and desired the names of their officers; but could obtain nothing of them but stubborn refusal, saying they would lose all at once, and not by pieces." Like others, he criticised Rhode Island, thus: "And upon the whole of this article, my lords, I am humbly of opinion that I do my duty to acquaint your lordships that the government of Rhode Island in the present hands is a scandal to her majesty's government. It is a very good settlement, with about 2000 armed men in it. And no man in the government of any estate or education, though in the province there be men of very good estates, ability and loyalty ; but the Quak- ers will by no means admit them to any trust, nor would they now accept it, in hopes of a dis- solution of that misrule, and that they may be brought under his majesty's immediate govern- ment in all things, which the major part by much of the whole people would pray for, but
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dare not, for fear of the oppression and affront of the Quakers party making a noise of their Charter."
There were fighting men among the Rhode Island Quakers during Queen Anne's War, including the Wanton brothers, William and John. The colony was organized on a war footing, and Rhode Island, while insisting upon the colony right to control the militia, responded to every reasonable request made by Dudley for assistance by furnishing soldiers, sailors and transports .* To secure for Dudley's government at Boston the incidental revenue arising from the condemnation of prizes, Queen Anne expressly repealed and annulled the Rhode Island statute of 1694 creating an admiralty or prize court at Newport, and discon- tinued her majesty's court of admiralty there. This was the first instance of a royal veto or annulment of a Rhode Island statute; the action of King William in creating a royal admi- ralty court at Newport in 1698 might be construed as an assumption of a power resting in the crown. The erection of the royal admiralty court would operate to discontinue the colonial admiralty court, in much the same way that the assumption by Congress of a fed- eral function supersedes state activity in the jurisdiction ; thus state bankruptcy laws effective in the absence of bankruptcy laws made by Congress, yield if and when Congress enacts a bankruptcy act. Anne went further than William in so much as she repealed the Rhode Island statute and removed the royal jurisdiction to the court at Boston. Governor Cranston, under the military powers vested in Rhode Island under the Charter, commissioned a pri- vateer, and the privateer, the "Charles," brigantine, brought into Newport a prize in a leaky condition, unfit for sailing to Boston. Application was made to Nathaniel Byfield, local agent for Dudley, to condemn the prize. Byfield was reluctant to act, but permitted the landing of the prize cargo to save the vessel from sinking. Byfield denied the validity of the Governor's commission. Byfield at length condemned the prize under orders from Dudley, who yielded, as he alleged, to prevent the embezzlement of the cargo. Byfield in a relation of the episode, subsequently, asserted that his life was threatened, and that his court was invaded by "eighteen lusty fellows," who demanded the reading of a paper, and subsequently "hooted" Byfield and the clerk of the court "down the street . . . . . without any notice being taken by any in the government there."
MORE CHARGES-Dudley's designs on Rhode Island were supplemented for the time being by similar activity by Cornbury, Governor of New York, against Connecticut. Dudley and Cornbury eventually joined in a common enterprise against both the chartered colonies. In November, 1705, Dudley sent thirteen charges, twelve less than Bellemont, supported by voluminous documentary evidence, against Rhode Island to the English Board of Trade. Dudley charged that Rhode Island (I) did not observe the trade and navigation act, but per- mitted illegal trade and piracy; (2) was a resort for pirates; (3) received and protected deserters and malefactors and shielded escaping criminals; (4) refused to furnish troops for the defence of New York and Massachusetts; (5) discriminated in administering justice in civil courts against non-resident suitors; (6) tried capital offenses without legal juris- diction ; (7) refused to permit the pleading of the laws of England in court; (8) refused to permit appeals from the colonial courts to England; (9) refused to submit to and "defeated the powers given to the Governors of her majesty's neighboring colonies"; (10) when Dudley presented his commission to command the militia "used indecent expressions toward her majesty, saying they were ensnared and injured and would not give (nor have they since given) due obedience to the said commissions"; (II) refused to permit Dudley to review the militia, saying "they would lose all at once and not by pieces." Dudley accused the Quakers of excluding "persons of estates and abilities" from "places of public trust." He alleged that the government of Rhode Island debauched the crews of two privateers, the
*Chapter VIII.
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"Lawrence" and "Blew," and thus persuaded them not to convoy a prize to Boston. Corn- bury made somewhat similar charges against Connecticut and Rhode Island. Rhode Island's answer included a denial of some of the charges, and an assertion of superior legal authority resting in the Charter with reference to others. Neither Cornbury nor Dudley gave credit to Rhode Island for effort in Queen Anne's War. Though both collected voluminous "evi- dence," much of it was irrelevant or otherwise faulty. In England the Board of Trade advised measures to curb the chartered colonies; the Attorney and Solicitor Generals sug- gested that "default or neglect of a proprietor" might warrant action. A bill "for the better regulation of the charter governments," passed by the Commons, was rejected by the Lords, and Rhode Island was saved. Rhode Island won through this crisis eventually on the presen- tation of proof of a splendid record of loyalty in the war, including the fortifying of the entrance to Narragansett Bay; besides the colony's accredited quota, the furnishing of 400 men and five transports, for which no credit was given by Dudley; £6000 for war purposes ; the achievements of Rhode Island privateers against enemy commerce. The colony was heavily in debt and faced a serious economic situation because of the issuing of paper money as a means of extending colonial war credit.
COMMON SENSE IN ENGLAND-While William Penn, then Rhode Island's resident agent in England, no doubt was influential in promoting a better opinion there of the staunchly independent though diminutive republic in New England, common sense had begun to assert itself in the mother country and was working toward the establishment of amity and friend- ship as a sound basis for mort profitable commerce within the empire. Three letters to Rhode Island and other American colonies in 1707 and 1708 dealt principally with trade relations and economic matters, including inquiries concerning the slave trade, the operation of the trade and navigation act, clipping coins, population and the increase thereof, trade and the increase thereof, ships, sailors, shipbuilding, etc. Governor Cranston's answers, besides discussing Rhode Island's war service, and answering the questions concerning trade,* popu- lation, etc., covered these matters of earlier controversy: (I) "As to the administration of justice in this colony, we have two general courts of trials . . . annually ; at which courts are tried all actional and criminal causes happening within said colony, where the laws of England are approved of and pleaded to all intents and purposes, without it be in some par- ticular acts for the prudential affairs of the colony, and not repugnant to the laws of Eng- land." (2) "As to the methods taken to prevent illegal trade, we have a collector and con- troller of his majesty's customs settled by the honorable the commissioners in this colony, and a naval officer by the Governor, who take all due methods and care they can, by searching and inspecting the several cargoes imported and putting the several masters or commanders upon their oaths, etc. We have had no trade to any place but Curacao that would give us any suspicion of illegal trade; but that trade is at present wholly laid aside by our traders, so that I know of no other place that they have any trade to or from that can give us grounds to suspect any fraud. . . . All due methods will be taken, as there may be occasion, to pre- vent and suppress any illegal trade, .... and what orders or directions we shall at any time receive from your lordships or the honorable commissioners, relating to trade, shall and will be punctually and duly observed and complied with in the best manner and method we are capable of." (3) "The colony is putting the several acts of Assembly in a method for the press, as soon as it can be accomplished, and will not fail in sending your lordships a copy of the whole, and will, according to your lordships' command, transmit yearly accounts of their administration, and additional acts of Assembly, as opportuntiy will present." In the same years Governor Cranston took the oath to enforce the trade and navigation act in the presence of Francis Brinley and Jahleel Brenton and members of the council. The printing
*Chapter V discusses Governor Cranston's answers on economic matters.
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of the laws was delayed, however. The committee appointed previously was continued in 1708. One Bradford, son of Bradford, the printer, of New York, in that year offered to set up a printing press in Newport and "to find paper and print all things that may relate to the colony and government for £50 per annum, if it be but for one year or two," and the Assembly expressed its willingness "to allow him, the said Bradford, £50 for one year, and so yearly, if the colony see good to improve him." Bradford probably did not settle in New- port. Evidence that the laws were not printed in 1708 appears in the Board of Trade's repeated requests for copies of the colony laws in 1708 and in 1710. In the latter year Gov- ernor Cranston excused his failure to forward the laws, thus: "The colony's time having been taken up (so much) upon the aforesaid expedition (to Nova Scotia) that they have not got their laws perfected for the press, so as to comply with your commands at this time, but are forwarding the same with all expedition." Secretary Popple's answer was emphatic: "The lord commissioners . . . . shall expect a collection of the laws of Rhode Island, as prom- ised. In sending which laws you will do well, if there be any among them that are of a par- ticular nature, to explain . ... the reasons for passing the same, unless such reasons be expressed in the preamble of the act." In 1711 the Governor was authorized to "take with him such council or assistance as he thinks most suitable, and order or cause all the laws of this colony to be transcribed into a good and true form fit for the press, that they may be printed" if possible before the following May session. Four years later Major Thomas Frye and Lieutenant Andrew Harris were ordered to "transcribe, fit and prepare for the press, all the laws," following a resolution that "the body of laws in this colony, as well as those other laws in force which have been made since the said body of laws, lie in a disor- dered condition and only in the hands of a few persons, so that the generality of the inhabi- tants cannot purchase them without great charge." In 1716, a fresh committee was appointed "to transcribe the laws of this colony in a regular form fit for the press, and to take the Governor's advice in all points of difficulty." Two years later, Joseph Jencks, Major Frye, Nathaniel Nudigate and Richard Ward were authorized to "revise, correct, transcribe and fit for the press all the laws of this colony now in force, as well those in schedules as those on the abstracts." In the same year the Recorder was ordered to "fit the laws for the press with marginal notes thereon, and to be compared, when finished, by the Governor and Major Frye, and that Major Frye get them printed." The laws were printed in 1719. Major Frye was allowed fio for services, and was ordered to pay £18 "in his hands (which was left after the purchase of the law books of Mr. Nicholas Boone) into the treasury." The books were distributed to members of the General Assembly, one each; one to each town for the town clerk's office, and twenty-nine remaining copies to the several towns "to and for the use of such towns as they shall see cause to order." The law for distribution accounted for seventy-eight copies of fourscore purchased from Mr. Nicholas Boone. The laws were "printed by John Allen, for Nicholas Boone, at the sign of the Bible in Cornhill," Boston.
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