USA > Rhode Island > Rhode Island : three centuries of democracy, Vol. I > Part 83
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The peroration was brilliant :
We have seen that our government was in its origin a democracy; and continued such, by the assent of the King of England, to the time of the Revolution; that the whole people succeeded to the sovereignty of the state; that, for the reasons given, they omitted to exercise it in the formation of a constitution; that our government has degenerated into a freeholding aristocracy; that safety and self-respect forbid a longer delay in the work of reform; and that the people are now proceeding, in an unobjectionable and appropriate mode, to adopt such measures as justice requires. And in so doing, they will relieve the freeholders from the absurd position in which a portion of them, at least, have placed themselves in attempting to resist the course of popular rights. They tell us that the people have no authority to make a constitution; that the legislature have no authority; and that the freeholders have no authority, because they cannot budge one inch until authorized by the legislature. In this distressing difficulty, rather than that the sovereignty of the state should evaporate, and be entirely lost, the people have consented to step in, and to take the case into their own hands, and to do substantial justice to all the parties who are concerned. The freeholders are a part of the people. though not the whole people ; and we are happy to find the liberal portion of them going along with us in this good work. Our ticket is so formed that every voter will respond to the question whether he be quali- fied under the existing laws or not. A majority of the freeholders is not necessary to our success; but it will be gratifying to find them on the right side. If the people give us a majority, we shall conclude the free- holders; if the freeholders do the same, they will conclude themselves. I trust that the result will be the adoption of a constitution that shall be worthy of our venerated ancestors, and transmit the blessings of their "ancient democracy," and of well-ordered and rational liberty, to their remotest descendants.
THE REFERENDUM -- The People's Constitution was submitted to "the people" on Decem- ber 27, 28, 29, and the ballots cast indicated 13,944 for and 52 against it. Of the ballots 4960 were cast by freemen, and 8984 by non-freemen, or persons not qualified to vote under the existing statutes. Assuming that all of the fifty-two votes against were cast by freemen,
*The Rhode Island Supreme Court has applied the reverse statement of this doctrine in its holding that the Constitution of Rhode Island can be changed only in the method stated in the document.
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which was not true, the 4902 freemen voting for ratification were more than half the largest number of freemen who voted for Governor in any election earlier than 1843, which was 8402 in the closely contested election of 1818; and the next largest, which was 8283, in 1840. Whether or not 4902 was more than half, or a majority, of the freemen in Rhode Island in 1842 may not be determined accurately, for want of the careful records of elections which are characteristic of modern times; if it were less than half, then there were at least 9856 free- men in Rhode Island in 1842. From the Dorr point of view, however, it was not necessary to determine a majority of freemen. From the point of view of the Charter government and its supporters, the question of majority was immaterial because the entire proceedings had been illegal for want of authorization.
A COMPLEX SITUATION-For a clear understanding of the situation in Rhode Island early in 1842 the chronological sequence of events related to the two constitutions is signifi- cant. The call for the landholders' convention was issued in February, 1841; that for the people's convention in July. With the exception of the time of issuing the call, action on the People's Constitution preceded action on the Landholders' Constitution. Delegates to the two conventions were chosen in August, to the people's convention on August 28, to the land- holders' convention three days later. In Providence the eighteen delegates chosen for the people's convention included the six chosen for the landholders' convention. The people's convention assembled October 4, almost a month before November I, the date set for the landholders' convention. The initial draft of the People's Constitution was completed Octo- ber 9, and was available for discussion by the people for full three weeks before the meeting of the landholders' convention. Dorr, who had been elected as delegate to both conventions, attended both, and in the landholders' convention attempted to persuade the body to adjourn without action, as had the convention of 1834, or to adopt the People's Constitution as its own. The landholders' convention adjourned November 15, with its task incomplete; the people's convention reassembled November 18.
Thereafter Dorr and his associates moved expeditiously. Dorr himself had been reported as sensing danger to his cause in the adjournment of the people's convention on October 9; had his wish prevailed, the convention would have submitted the constitution in tentative form to the plebiscite immediately. The details wanting perfection could have been left subject to amendment by simple process, as was the matter of color discrimination in the constitution as it was submitted later. Had the program suggested by Dorr been followed, and the plebiscite been completed favorably, the landholders' convention on November I would be confronted by the fact of a constitution already ratified by a majority of the people. As it was, following the adjournment of the people's convention in November, the referendum was conducted December 27, 28, 29, and the ballots had been counted and the constitution proclaimed as rati- fied on January 13, before the landholders' convention reassembled. The landholders' conven- tion was faced in February with the fact of a People's Constitution proclaimed, and the fate of the Landholders' Constitution, rejection by the people in March, was predicated to this fact, and to the efforts of Dorr and his associates to accomplish a negative vote. But in February the situation was not identical with the situation in October; the General Assembly had acted in January and the landholders' convention in February had been strengthened in its morale by the determination displayed by the General Assembly. The landholders' convention rejected Dorr's motion to adjourn sine die by a vote of eleven to fifty-one.
Returning to January and the General Assembly, Samuel Y. Atwell, in January, 1842, offered a resolution that the Assembly accept the People's Constitution, which was rejected, after vigorous debate, by a vote of eleven to fifty-seven. The Assembly next adopted resolu- tions condemning the action of the people's convention, sixty to seven, as follows :
Whereas a portion of the people of this state, without the forms of law, have undertaken to form and establish a constitution of government for the people of this state, and have declared such constitution to be
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the supreme law and have communicated such constitution to this General Assembly; and whereas many of the good people of this state are in danger of being misled by these informal proceedings; therefore, it is hereby resolved by this General Assembly that all acts done by the persons aforesaid, for the purpose of imposing upon this state a constitution, were an assumption of the powers of government, in violation of the rights of the existing government, and of the rights of the people at large; that the convention called and organized, in pursuance of an act of this General Assembly, for the purpose of forming a constitution to be submitted to the people of this state is the only body which we can recognize as authorized to form such a constitution; and to this constitution the whole people have a right to look, and we are assured they will not look in vain, for such a form of government as will promote their peace, security and happiness; that this General Assembly will maintain its own proper authority and protect and defend the constitutional rights of the people.
The General Assembly also requested towns to fill up vacancies in the delegations to the landholders' convention, and passed an act defining the qualification of electors in the referen- dum, or, rather, permitting the constitutional convention to define them, in terms of the quali- fications established by the constitution.
LANDHOLDERS' CONSTITUTION REJECTED-The rejection of the Landholders' Constitu- tion was important in its relation to events subsequently ; had this constitution been ratified, it seems scarcely probable that Dorr would have persisted in his program. There were, to be sure, radical differences in the two constitutions, but there were also marked similarities, and the similarities exceeded the differences in number if not in importance. The most significant differences related to suffrage and representation; the other issue, the fact of a constitution defining the authority of the government, was established by either. The People's Constitu- tion gave the right to vote to "every white male citizen of the United States of the age of twenty-one years who had resided in this state for one year, and in the town, city or district of the same for six months preceding the election at which he offers his vote." The Land- holders' Constitution set up a residence qualification of one year for native white adult male citizens of the United States possessing a freehold valued at $134; two years' residence quali- fication for native white adult male citizens of the United States, with a limitation on the right to vote on taxes or appropriations unless possessing the freehold qualification or taxed for personal property valued at $150; three years' residence for naturalized white adult male citizens of the United States. The color discrimination in both constitutions against Indians and negroes aroused opposition on the part of the latter, and precipitated agitation in public meetings. Among others, natives and visitors to the state, who spoke at these meetings, was Frederick Douglass. The People's Constitution provided for a Senate of twelve members, elected one each from twelve districts, with the Lieutenant Governor as presiding officer ; the Landholders' Constitution for a Senate of nineteen members elected in sixteen districts, with the Governor as presiding officer and the Lieutenant Governor a member ex-officio. The People's Constitution gave one Representative each to Barrington, Jamestown and Middle- town; two each to twenty-one towns; three each to Cumberland, North Providence and Scitu- ate; four to Warwick; five each to Newport and Smithfield; twelve to Providence, to be elected two from each city ward. The Landholders' Constitution provided for apportionment on the basis of population by a weighted ratio, with not less than two Representatives to any town. The differences affected Barrington, Jamestown and Middletown, two each instead of one; Newport and Smithfield, four each instead of five; and Providence, eight instead of twelve. The People's Constitution tended to separate judicial functions definitely from legis- lative functions, but made the jury's decision conclusive as to both law and fact. In an article dealing with public education it ordered the establishment of a system of free public schools, whereas the landholders were content with public schools; in this the handiwork of Dorr was clearly defined-he had for years advocated a free public school system.
But fate or politics decreed that the choice after March 23, 1842, and the rejection of the
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Landholders' Constitution, should lie between the People's Constitution and the Charter. If the General Assembly's action with reference to the Landholders' Constitution, including (1) the call for the convention; (2) the modification of apportionment of representation to con- form somewhat to population ; (3) the extension of suffrage in the referendum on ratification, might be construed as concessions to the demands of the people, the latter had rejected the peace offerings. The Assembly was firm in January, 1842, in its declaration that it would not recognize the validity of the People's Constitution.
THE "JOURNAL" "DOUBTS THE VOTE"-The "Providence Journal," so early as January, 1842, questioned the validity of the returns of the vote on the People's Constitution, thus : "Allowing the proceedings of the suffrage party to have been perfectly legal, it must be shown that the 14,000 votes are the votes of citizens of the state, of lawful age, and the burden of proof rests with those who claim the government. The right of possession is valid until the party claiming brings forward the proof." Dorr and his associates had taken extraordinary precau- tions to assure a careful record of the vote. The forms of ballots used permitted a classifica- tion of voters, and the names signed provided a key to identification. Two of the ballots used, one for and the other against, follow: "I am an American citizen of the age of twenty-one years and have my permanent residence or home in this state. I am qualified to vote under the existing laws of this state. I vote for the constitution formed by the convention of the people assembled at Providence, and which was proposed to the people of said convention on the eighteenth day of November, 1841. SIGNATURE." "I (name) am an American citizen, of the age of twenty-one years, and have my permanent residence, or home, in the State of Rhode Island. I am (not) qualified to vote under the existing laws of this State. I vote (against ) the constitution formed by the convention of the people assembled in Providence, and which was proposed to the people by the said convention on the eighteenth day of Novem- ber, 1841." Accusations were made subsequently that, whereas, in most instances the elec- tion officers exercised the utmost care to prevent fraudulent voting, in other instances no restriction was interposed to any who offered a ballot, and ballots were offered and cast on behalf of persons known to be absent from the state and even of persons who were dead.
The "Providence Journal" on February 7, 1843, asserted that 552 fradulent votes had been cast in Newport, including ballots by or for 251 unnaturalized aliens, fifty-three United States soldiers, forty non-residents, fifty-six sailors at sea, sixteen minors, thirty other absent persons, nineteen repeaters, six variations on names (indicating repeating), sixty-one fancy names, thirteen without the consent of parties, five colored persons, one pauper, one lunatic. This disclosure was made a year too late to affect the course of events in 1842.
OPINION OF THE JUDGES-In March, 1842, the three justices of the Supreme Judicial Court, Job Durfee, Levi Haile and William R. Staples, answered a private request for an advisory opinion on the validity of the People's Constitution as follows :
We have ever held it our duty, as justices of the Supreme Judicial Court, not to intermeddle with party politics, nor to volunteer our opinion on questions of law which might be presented to us officially. The questions submitted to us in your note, do not seem to us to be of such class, nor are they such, under all the circumstances of the case, as we feel at liberty to decline answering. We state then, as our opinion, that the convention which formed the "People's Constitution" assembled without law; that in forming it they proceeded without law; that the votes given in favor of it, were given without law; and, however strong an impression of public opinion they may present, that said constitution, instead of being the paramount law of the land, is of no binding force whatever ; that obedience to it will form no justification or excuse for any act done in pursuance of it; and that any attempt to carry it into effect by force will be treason against this state, if not against the United States.
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OPINION OF THE NINE LAWYERS-In answer to this declaration, widely variant as it was from the decision of the United States Supreme Court in Luther vs. Borden* that the questions involved in the Dorr movement were "political" and not within the jurisdiction of the court, being reserved by the Constitution for the Executive and the Congress, Dorr and eight other lawyers-Samuel Y. Atwell, Joseph K. Angell, Thomas F. Carpenter, David Daniels, Thomas W. Dorr, Levi C. Eaton, John P. Knowles, Dutee J. Pearce and Aaron White, Jr., published the "Right of the People to Form a Constitution. Statement of Rea- sons," most frequently cited as the "Nine Lawyers' Opinion." The nine lawyers, or Dorr, who wrote the opinion, repeated much that had been urged earlier, particularly by Dorr in his address to the people's convention, and undertook to explain the expression "without law," as used in the opinion of the three justices, as meaning no more than "without the request of the General Assembly." The three justices spoke on March 3, the nine lawyers on March 15; Chief Justice Durfee, on March 25, charging the grand jury in Bristol County, ended a dra- matic analysis of the situation with a declaration that the People's Constitution "is not the supreme law of this state; and those who may attempt to carry it into effect by force of arms will, in the opinion of the court, commit treason." Then followed the rejection of the Landholders' Constitution.
A PEACE REJECTED-One final effort at reconciliation was undertaken. At a special ses- sion of the General Assembly in March a resolution to submit the People's Constitution to a referendum of freemen was rejected 3-53; a bill to extend suffrage was rejected, 4-60; a statute warning the public against unlawful acts was passed, 60-6. This act, known subse- quently as the "Algerine Act" opened with a preamble, which follows :
Whereas, in a free government, it is especially necessary that the duties of the citizen to the constituted authorities should be plainly defined, so that none may confound our regulated American liberty with unbridled license ; and whereas certain designing persons have, for some time past, been busy with false pre- tences amongst the good people of this state, and have framed, and are now endeavoring to carry through, a plan for the subversion of our government, under assumed forms of law, but in plain violation of the first principles of constitutional right, and many have been deceived thereby; and whereas the General Assembly, at the same time that it is desirous to awaken the honest and well meaning to a sense of their duty, is resolved, by all necessary means, to guard the safety and honor of the state, and, overlooking what is past, to punish such evil doers in future, in a manner due to their offences.
The act (1) declared all election meetings except those prescribed by law illegal and void, and prescribed a fine of $500 to $1000 and imprisonment for six months as punishment for any person acting as officer in an illegal meeting; (2) prescribed a fine of $2000 and imprisonment for one year as punishment for any person accepting a nomination for office or election "by virtue of any such pretended elections"; (3) declared any assumption or exercise of the powers of any state office through irregular election "usurpation of the sovereign power" and "treason against the state," punishable by life imprisonment; (4) placed the jurisdiction for trying all offences under the act in the Supreme Judicial Court only. The Supreme Judicial Court had already declared its attitude, in the opinion of the three justices, and in Justice Durfee's charge to the jury in Bristol County. Fortunately, perhaps, for offenders the penal code had been revised in 1835, and the punishment for treason reduced from death to life imprisonment. Most extraordinary were these other provisions in the statute, permitting (1) commitment to any jail designated by a justice; (2) arrest by any sheriff or other officer "without regard to his precinct"; (3) indictment "in any county of this state, without regard to the county in which the offence was committed"; (4) trial in any county selected by the Supreme Judicial Court "for the purpose of insuring a fair trial of the
*7 Howard, 1.
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same"; (5) imprisonment in any county jail or the state prison at the option of the court. The General Assembly, without question, had power to abolish counties; the "changes of venue" for indictment and trial were both without precedent and have not become precedents.
RHODE ISLAND HAD TWO GOVERNORS -- The firm attitude assumed by the General Assembly in January, 1842, was not without effect on the suffrage party. The convention to nominate candidates for election under the People's Constitution experienced difficulty in completing a ticket. Declinations were received even before the convention adjourned; the original ticket disappeared entirely with the enactment of the Algerine Act. Not until April II, one week before election, was a ticket completed; by that time Dorr had been constrained to accept the nomination for Governor. There was no opposition, and Dorr, other general officers and members of the General Assembly were elected. Two days after the Dorr elec- tion the regular state election under the Charter was conducted and Governor King was reelected. Rhode Island, for the time being, had two sets of general officers, two Governors and two General Assemblies. Governor Dorr had received 6359 votes; the total vote cast in the regular election was 7080, of which Governor King had received 4864, Thomas F. Car- penter 2211, and five were scattering.
Fortunately for the public peace, Rhode Island still had five capitals, and two of these would suffice for keeping the rival governments far enough apart to negative the possibility of physical conflict. Governor King and his General Assembly met at Newport, as provided in the Charter; Governor Dorr and his General Assembly met at the Hoyle Tavern in Prov- idence and proceeded, under escort of 2000 men, including two military companies, fully armed, to march toward the centre of the city and the State House. A military escort for the Governor on inauguration day conformed to immemorial precedent. The State House in Providence was not occupied, but it had been closed and barricaded. Dorr proposed forcing entrance, but was dissuaded, and the General Assembly met in an unfinished foundry building. Dorr's failure to take possession of the State House was at least a tactical error; actual occu- pation of the building and exercise of the functions of government with a show of authority, would do much to establish his right to recognition as de facto Governor of Rhode Island, aside from the psychological effect of a hold and masterful stroke upon the opinions of the people of the state and upon the Governor and General Assembly at Newport. The Dorr General Assembly continued in session two days, during which it canvassed and counted the votes cast at the election, engaged officers, organized, passed laws repealing the resolutions and statutes passed by the Charter General Assembly in April, 1842, including the Algerine Act, and other measures of an extraordinary nature, ordered the proclamation of its organization, directed the transfer of books and records to the officers elected, continued officers who had not been reelected or replaced in office pending an adjourned session, directed the Governor to appoint commissioners "to proceed to Washington to make known to the President of the United States that the people of this state have formed a written constitution, elected officers, and peaceably organized the government under the same; and that the said government is now in full operation." The Dorr Assembly adjourned to the first Monday in July, 1842, but never reassembled.
APPEAL TO WASHINGTON-Both Governors and both General Assemblies appealed to President Tyler. So early as April 4, 1842, Governor King sent Elisha R. Potter, John Brown Francis, and John Whipple, "three of our most distinguished citizens," with a letter addressed to the President, requesting that the latter undertake such precautionary measures against an expected insurrection "as may afford us that protection which the Constitution of the United States requires. There is but little doubt," the letter continued, "but that a proc- lamation from the President of the United States, and the presence here of a military officer
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to act under the authority of the United States, would destroy the delusion which is now so prevalent, and convince the deluded that, in a contest with the government of this State, they would be involved in a contest with the government of the United States, which could only eventuate in their destruction." Answering on April II, President Tyler declared "that no power is vested in the Executive of the United States to anticipate insurrectionary movements against the government of Rhode Island so as to sanction the interposition of the military authority ; but that there must be an actual insurrection, manifested by lawless assemblages of the people, or otherwise, to whom a proclamation may be addressed, and who may be required to betake themselves to their respective abodes. I have, however, to assure your excellency that, should the time arrive (and my fervent prayer is that it may never come) when an insurrection shall exist against the government of Rhode Island, and a requisition shall be made upon the Executive of the United States to furnish that protection which is guaranteed to each state by the Constitution and laws, I shall not be found to shrink from the performance of a duty, which, while it would be the most painful, is, at the same time, the most imperative."
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