USA > Rhode Island > Rhode Island : three centuries of democracy, Vol. I > Part 80
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Rhode Island ratified the Constitution of the United States with the first ten amend- ments, and entered the Union without a state constitution of the single written document type that is distinctively American. The eleventh amendment, defining the "judicial power" of the United States, was ratified in March, 1794, following the decision of the Supreme Court of the United States in Chisholm vs. Georgia ;* the Rhode Island General Assembly might be expected to object to suits against Rhode Island by citizens of other states, in view of its strong opinions on sovereignty indicated by action. By statute in 1795 the Governor, Deputy Governor and Assistants, sitting as a chamber of the General Assembly, were named "House of Magistrates ;" and the Deputies "House of Representatives." The issues as to what was the constitution and what were the powers of the General Assembly were raised again in 1796, when Providence objected to a new state valuation for tax purposes. The valuation of the state was placed at $15,500,000; that of Providence at $2,950,000 .; The state valuation had been increased approximately fifty per cent. over that for 1782; the Providence valuation had been approximately trebled. Fifteen members of the House of Representatives protested against the valuation, including representatives from Bristol, Newport and Providence. The Providence town meeting denounced the valuation as "unjust" and "unconstitutional," and ordered the town's assessors of taxes not to assess the town's share of a tax of $20,000 levied by the General Assembly on the basis of the new valuation. The town meeting also issued a call for a convention of towns to consider the valuation, and also the expediency of adopting a state constitution. Delegates from eight towns in Bristol and Providence counties met and organized with Daniel Mowry as chairman and James Burrill, Jr., as secretary. The conven-
tion issued two circular addresses to the towns of Rhode Island, one of which denounced the valuation as based on "conjectural calculations and selfish views"; the other circular urged the necessity for a state constitution. The town of Providence instructed its representatives in the General Assembly to move for a constitutional convention; at the October session, 1796, the General Assembly referred the motion for a constitutional convention to the free- men in town meeting for consideration and discussion, and for instructing their representa- tives. Providence assessed the tax in September, 1796. The fate of the proposition for a con- stitutional convention in the town meetings appears in the fact that no further action was taken by the General Assembly. The town meetings of the spring of 1797 thus rejected a proposition for a constitutional convention by inaction on the Providence proposition.
THE ASSEMBLY ENACTS A BILL OF RIGHTS-Meanwhile, in 1794, the General Assembly had appointed a committee to revise and consolidate the laws of the state. The committee was continued in 1795, and augmented in October of the same year. It reported in 1797 and the General Assembly in that year adopted as a code of laws to become operative in 1798 the
*2 Dallas 419.
tThe Increase probably was not unjust ; Providence had been enjoying extraordinary prosperity.
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"Digest of 1798," which became effective by enactment of the General Assembly, all other general laws being repealed. The Digest included (1) the King Charles Charter of 1663; (2) the Declaration of Independence by Congress; (3) Rhode Island's act of ratification; (4) the Articles of Confederation and Perpetual Union; (5) the Constitution of the United States and amendments, with the action of Rhode Island thereon; (6) Washington's Fare- well Address; (7) an act enacting the digest and repealing all other laws; (8) "An act declaratory of certain rights of the people of this state"; (9) "An act relative to religious freedom and the maintenance of ministers," and (10) a series of acts embodying a code of general legislation. The "act declaratory of certain rights" enumerated rights "declared to be inherent and unquestionable" and "of paramount obligation in all legislative, judicial and executive proceedings." In the sense that it embodied a code not subject to alteration by the General Assembly the "bill of rights" might be called the first "Constitution of Rhode Island," although it might be questioned seriously if the General Assembly which itself had declared these rights inviolable did not retain the power to amend or abolish them. The act and an unprecedented statute assuring complete religious freedom follow :
AN ACT DECLARATORY OF CERTAIN RIGHTS OF THE PEOPLE OF THIS STATE.
WHEREAS the General Assembly of this state have from time to time passed sundry acts, declaratory of the rights of the people thereof : And whereas a declaration of certain rights is deemed by this Assembly to be highly proper and necessary, both for the administration of justice and the security of said rights :
Be it therefore enacted by this General Assembly, and by the authority thereof it is enacted, That the people of this state are entitled, among other important and essential rights, to the rights hereafter enumer- ated, and that the same are and hereby are declared to be the inherent and unquestionable rights of the people inhabiting within the limits and jurisdiction of this state: That the political axioms, or truths, herein after mentioned and declared, are, and ought to be, of paramount obligation in all legislative, judicial and executive proceedings, which shall be had or done therein, under the authority thereof. .
Sec. I. Every person within this state ought to find a certain remedy, by having recourse to the laws for all injuries and wrongs which he may receive in his person, property or character. He ought to obtain right and justice freely, and without being obliged to purchase it, completely, and without any denial ; promptly, and without delay; conformably to the laws.
Sec. 2. The right of the people to be secure in their persons, houses, papers and possessions, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but on complaint in writing, upon probable cause, supported by oath or affirmation, and describing, as nearly as may be, the place to be searched, and the persons or things to be seized.
Sec. 3. No person shall be holden to answer a capital or other infamous crime, unless on presentment or indictment by a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war, or public danger. No person shall, for the same offence, be twice put in jeop- ardy of life or limb.
Sec. 4. Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted ; and all punishments ought to be proportioned to the offence.
Sec. 5. All prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident, or presumption great ; and the privilege of the writ of habeas corpus shall not be suspended, unless when. in cases of rebellion or invasion, the public safety may require it.
Sec. 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ; to be informed of the nature and cause of the accusation, to be confronted with the wit- nesses against him, to have compulsory process for obtaining them in his favour, and to have the assistance of counsel for his defence ; nor can he be deprived of his life, liberty or property, unless by the judgment of his peers, or the law of the land.
Sec. 7. The person of a debtor, when there is not strong presumption of fraud, ought not to be con- tinued in prison, after delivering up his estate for the benefit of his creditors, in such manner as shall be prescribed by law.
Sec. 8. Retrospective laws, punishing offences committed before the existence of such laws, are oppressive and unjust, and ought not to be made.
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Sec. 9. No man, in the courts of common law, ought to be compelled to give evidence against himself. Sec. 10. Every man being presumed to be innocent, until he has been pronounced guilty by the law, all acts of severity that are not necessary to secure an accused person ought to be repressed.
AN ACT RELATIVE TO RELIGIOUS FREEDOM, AND THE MAINTENANCE OF MINISTERS.
Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punish- ments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in His almighty power to do; that the presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporary rewards, which, proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind; that our civil rights have no dependence on our religious opinions; that therefore the prescribing any citizen as unworthy the public confidence, by laying upon him an incapacity of being called to offices of trust and emolument, unless he pro- fess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow-citizens, he has a natural right; that it tends only to corrupt the prin- ciples of that religion that it is meant to encourage, by bribing with a monopoly of worldly honors and emolu- ments, those who will externally profess and conform to it; that though indeed those are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because, he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiment of others only as they shall square with or differ from his own; that it is time enough, for the rightful purposes of civil government, for its officers to interfere, when principles break out into overt acts against peace and good order; and, finally, that truth is great, and will prevail, if left to herself ; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous, when it is permitted freely to contradict them.
And whereas a principal object of our venerable ancestors in their migration to this country, and settle- ment of this state, was, as they expressed it, to hold forth a lively experiment, that a most flourishing civil state may stand, and best be maintained, with a full liberty in religious concernments :
Be it therefore enacted by the General Assembly, and by the authority thereof it is enacted, That no man shall be compelled to frequent or support any religious worship, place or ministry, whatsoever; nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief ; but that all men shall be free to profess, and by argument to main- tain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.
THE DIGEST OF 1798-The government of Rhode Island was described in detail in the Digest, beginning with the manner of admitting freemen. Admission as freeman was not a right guaranteed to the person who possessed the qualifications prescribed for eligibility; a freeman was admitted by grace of the body of freemen assembled in town meeting, the pre- scription of qualifications rather limiting the power of the town to admit than establishing the right to admission. In contrast with the older notion that an inhabitant might be made "free of the town" by grant of the freemen, the modern right to political citizenship is fundamental and was established after years of agitation. Rhode Island towns could admit as freemen only "inhabitants of their respective towns" who at the time of admission were "really and
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truly possessed in their own proper right of a real estate within this state to the full value of $134, or which shall rent for $7 per annum, being an estate in fee-simple, fee-tail, or an estate in reversion which qualifies no other person to be a freeman, or at least an estate for a per- son's own life, or the eldest son of such a freeholder." A mortgagor not in possession lost the right to vote. A husband or widower might be admitted on his life estate by courtesy; but a husband could not qualify on his wife's dower. Except the eldest son of a freeholder the candidate for freemanship must be "propounded at least three months in open town meet- ing." Freemen who were freeholders in the town of residence might vote for town officers ; freemen whose estates lay in other towns might vote only for Assistants in the General Assem- bly and for Governor and Lieutenant Governor. The manner of conducting the annual elec- tion town meetings on the third Wednesday in April was prescribed thus :
The moderator of each town meeting in this state shall receive all the proxy votes of the freemen, legally qualified, and no other person shall receive any proxy votes, , and no person shall vote for general officers, until the choice of Representatives be over, and then the freemen shall one by one, in their own proper persons, deliver the proxy votes to the moderator, who shall immediately cause the town clerk to enter and keep a fair register of the names of all persons who shall vote for general officers. And the town clerk shall, before the sealing up of the votes, carefully compare them with the list he hath taken, and return a true and exact copy of the same to the next succeeding general election; certifying also, what number of proxy votes were put in for each of the candidates for the office of Governor ; and the said original list shall be lodged in the town clerk's office. . . . Every person who shall vote by proxy for general officers, shall have his name written at length on the back of his proxy vote, at the time of delivering in the same; and the names of all the officers voted for shall be in open town meeting sealed up by the town clerk, and by him delivered to an Assistant, or one of the Representatives of such town, and shall be by him delivered to the Governor, or in his absence to the Lieutenant Governor, in open Assembly, before the election proceeds.
With reference to the annual general election meeting of the General Assembly at New- port the Digest proceeded: "All business of the annual general election shall be done and transacted by the General Assembly in a grand committee, and not in separate houses." No person was eligible to sit in the General Assembly as a Representative unless he was a free- holder of the town for which he had been elected and a freeman and inhabitant of the same, except in the instance of New Shoreham, which might elect as Representative an island free- holder resident on the mainland. Representatives were elected semi-annually in April and August town meetings and each town elected "their number of Representatives as stated in the Charter." Meetings of the General Assembly were prescribed as follows: "The General Assembly shall be holden yearly, and every year, at Newport, on the first Wednesday of May ; there shall be one other annual session, holden alternately at Providence and South Kings- town, on the last Monday of October; the adjournments from the said sessions, respectively, shall be holden at East Greenwich, Bristol, or such other town as the General Assembly shall deem most convenient for the people, and shall from time to time prescribe in their acts of adjournment."
The Digest declared that the Governor, Lieutenant Governor, and Assistants should sit apart and be called the "Senate"; and that the meeting of Representatives should be called the "House of Representatives." Actually four names had been changed, thus: "Deputy Gov- ernor" to "Lieutenant Governor"; "House of Magistrates" to "Senate"; "Deputy" to "Rep- resentative"; and "House of Deputies" to "House of Representatives." The changes from the Charter designations conformed to the terminology in the Constitution of the United States except in the retention of the term, "Assistant." The Assistants were first called "Senators" in 1799. The system of courts included a Supreme Judicial Court, consisting of a chief justice and four associates, three to constitute a quorum, elected annually in May by the General Assembly in grand committee, and subject to removal for "misbehavior or inabil- ity to discharge their respective duties through sickness or other infirmity"; a court of com-
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mon pleas for each county, consisting in each instance of a chief justice and four associates, three to be a quorum; and courts of general sessions of the peace held by the justices of the peace of the several counties. In general the courts of common pleas exercised civil, and the courts of general sessions exercised criminal jurisdiction. The justices of the county courts of common pleas were justices of the peace in their counties. Town councils exercised probate jurisdiction. Jurymen were drawn by lot.
Among other laws of a general nature, including a criminal code, the Digest quieted titles established by ancient grant or usage, and uncontested possession; fixed twenty years as the period for acquiring title by undisturbed possession, and six years as the period of limitation in most actions at law; forbade interest in excess of six per cent. as usury; forbade slavery and the slave trade; named six causes for divorce; and provided for inspection of certain standard commodities and packages. Intestate descent was in equal shares to all children; the Digest reenacted the statute of 1792, which repealed the statute of 1770, giving the eldest son a double share. The militia law required the enrollment of all able-bodied men of military age, except those who were members of independent military companies, a large number of which had been chartered .¿ The popularity of independent military companies lay partly in the ambition for military office not assured of gratification in the state militia, and partly in the choice of training days. In the exercise of its assumed "constitutional prerogative" the General Assembly, through the Digest had (1) established and ordained a bill of rights; (2) amplified the Charter declaration of religious liberty and freedom of worship; (3) distinguished the suffrage rights of freemen in town and in state elections ; (4) fixed the ratio of representation by reference to the Charter; (5) changed the titles of public officers named in the Charter; (6) and established a separate judiciary.
THE CONSTITUTIONAL MOVEMENT-Reviewing the constitutional movement in Rhode Island to the end of the eighteenth century: The General Assembly, both before and after the Revolution, had exercised a sovereign "constitutional prerogative" in such manner as to adapt a seventeenth century corporation charter to the changing needs of a developing democ- racy. The patent inconsistency of continuing government after 1776 under a charter granted by the ancestor of a King allegiance to whom had been repudiated led, in 1777, to the appoint- ment of a legislative committee to consider changes; the committee did not report. The Providence town meeting of 1787, protesting a proposed reduction of the town's representa- tion in the Assembly, had declared that the Charter plan for representation was binding upon the Assembly until such time as a convention of freemen should authorize an amendment or draft a new constitution. The Assembly, in 1793, postponed consideration of a petition for a constitutional convention ; the postponement, without further action, was tantamount to rejection. Protesting a state tax valuation in 1796, the Providence town meeting urged the need for a constitution that would limit the powers of the General Assembly. The Assembly referred a request for a constitutional convention to a town meeting referendum for instruc- tion of Representatives, and the movement failed, for want of interest on the part of the free- men, if for no other reason.
The Providence Fourth of July Oration, 1797, delivered by George R. Burrill, was essen- tially a plea for a constitution. "Something better than a void, or at most an imaginary, con- stitution was to have been expected for the State of Rhode Island," the speaker declared. "We inhabit a crazy and comfortless mansion, shaken by the winds and pervaded by the storms. The materials are amid us for a stable, commodious and magnificent edifice. . . . The foundation is laid in the independence of our country; let the superstructure, the consti- tution . ... be raised and fixed upon it. The small extent of territory in the state will ren- der unnecessary that complexity which is found in the constitutions of most states." The
#Chapter XVII.
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speaker condemned as unjust a system that permitted a minority of freemen to elect a major- ity of Representatives, and declared that Rhode Island needed a constitution to curtail the authority assumed by the three agencies of government-assembly, executive and judiciary. In 1799 the House of Representatives rejected John Smith's motion for a convention consisting of one delegate for each 1000 inhabitants.
And thus the century closed with the Bill of Rights in the Digest of Laws of 1798 as the only body of fundamental law "of paramount obligation in all legislative, judicial and execu- tive proceedings." There had been no concerted and sustained effort to obtain a constitution ; indeed, only two flashes of discontent that passed quickly, and besides these only "academic" discussion. To the latter might be added the letter in which Henry Wheaton, in 1808, urged the adoption of a constitution. Wheaton was one of Rhode Island's most distinguished sons. Graduate of the University, he had become Reporter of the Decisions of the Supreme Court of the United States, American Minister to Denmark and to Prussia, and was author of a treatise on International Law that was standard as an exposition of the American view of the rights of nations at sea, including the American doctrines respecting neutral commerce, which eventually were accepted by the family of civilized nations. The Wheaton tradition at Brown University emphasized the study there of jurisprudence, political science and international law, and gave Brown the unique distinction of having graduated four American Secretaries of State-William Learned Marcy of Franklin Pierce's Cabinet, Richard Olney of Grover Cleveland's Cabinet, John Hay of William McKinley's and Theodore Roosevelt's Cabinets, and Charles Evans Hughes of Warren G. Harding's and Calvin Coolidge's Cabinets.
The Providence town meetings of 1787 and 1796 had protested the omnipotence of the General Assembly, assumed in (1) the threat to reduce the town's representation, and (2) the arbitrary state tax valuation. George R. Burrill had suggested inequitable representation as a cause for complaint. After the division of Glocester and the incorporation of Burrill- ville in 1806, the House of Representatives consisted of seventy-two members. On the basis of the census of 1810, seventeen of thirty-one towns, with 23,782 inhabitants, less than one- third of the total population, 77,031, could elect thirty-six representatives; but these towns, including two of Bristol County, two of Kent County, five of Newport County, four of Providence County, and four of Washington County, were altogether too incongruous a group to assume political solidarity. By counties the population and representation were: Bristol County, 5072, six Representatives ; Kent County, 9384, ten Representatives ; Newport County, 16,294, eighteen Representatives; Providence County, 30,869, twenty-two Representatives ; Washington County, 14,962, fourteen Representatives. Assuming eleven hundred as the unit of representation,* Bristol, Kent and Newport counties were favored in the actual appor- tionment, and Providence County suffered. It has never been demonstrated, however, that apportionment exactly on the basis of population assures justice; an apportionment that neglects economic interest and environment is scarcely scientific.t A north-south division of the state on parallel 41º 40' placed 42,140 inhabitants with thirty-four Representatives north of the line ; that is, Providence and Bristol counties and two towns in Kent County. A com- bination of ten commercial and industrial towns, 38,724 of 77,031 inhabitants, elected twenty- eight of seventy-two Representatives. In the discussion of representation it should be noted that one house of the General Assembly-the Senate-was elected at large, on general ticket, and that in the election of Senators numbers counted. The situation in 1810 might be sum- marized thus: The Senate was elected without apportionment or districting, every freeman's vote counting for the same value, wherever cast; representation in the House departed some- what from apportionment on the basis of equal representation. Of injustice there was little complaint, and inequality of representation was not sufficient in 1810 to create a major political
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