USA > Rhode Island > Rhode Island : three centuries of democracy, Vol. I > Part 86
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*Chapter XXVI.
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SECOND REVOLUTION IN RHODE ISLAND
PHILOSOPHY OF DORR MOVEMENT-The Dorr movement was founded upon the phil- osophy of popular revolution, which, aside from mention or declaration in constitutions and state papers and in the speeches or writings of illustrious Americans, was enunciated in Rhode Island so early as 1783 in the report of the Providence committee on the proposition to reduce the town's representation in the General Assembly, and again in 1790 in the Bill of Rights adopted by the constitutional convention. The immediate failure of the movement might be attributed to any one or all of three factors : First, the indecision of Dorr and his followers at critical moments, and failure to act when action was imperative for success that would estab- lish the Dorr government as de facto; second, the uncompromising determination of the Gov- ernor and General Assembly under the Charter not to surrender, and effective measures taken by them at opportune moments to resist and to carry into effect a program that became more and more definite as Dorr's weakness was disclosed; third, the interpretation of President Tyler's position with reference to the duty of the Executive to guarantee a state against insur- rection and domestic violence, although the President exercised all the diplomacy of perfect detachment in avoiding actual intervention. Eventually the Dorr movement had been suc- cessful in bringing about a popular opinion that had accomplished a very significant part of the original program of the suffrage party, to wit: (1) A state constitution of the American written-document type; (2) an extension of suffrage amounting probably to 100 per cent. in the comparison of the new with the old electorate; (3) a readjustment of representation, though the accomplishment in this particular was not so marked as with reference to the Constitution and suffrage. In its original form the proposition of the suffrage party had suggested a solution of the problem of determining which of two contesting state govern- ments was legal and constitutional in an appeal to Congress. Dorr himself recognized the impracticability of such an appeal, but veiled his disapproval of it in an assertion of supreme sovereignty resting on the state to determine the legality of its own government. Possibly he foresaw the difficulty of intriguing Congress into determination of a purely political ques- tion by concurrent action, and also the further entanglements that were possible should the Senate recognize Senators from one and the House of Representatives from the other of two governments, each asserting itself to be the legal government. The failure of Senate and House to agree was predicated to the power of each, under the Constitution of the United States to judge the qualifications of its own members. Eventually legal questions that involved a determination of the problem were carried to the Supreme Court of the United States and the Supreme Court of Rhode Island, and the conduct of President Tyler was investigated by a committee of the national House of Representatives.
SUPREME COURT AVOIDS DECIDING DORR ISSUE-Martin Luther, of Warren, served as moderator of a town meeting in Warren on April 18, 1842, and as moderator received ballots offered for officers under the People's Constitution. He was indicted under section I of the Algerine Act. At the trial Chief Justice Durfee, presiding, instructed the jury to find the defendant guilty if they were satisfied that he had acted as moderator and received ballots. The jury found Luther guilty, and Judge Durfee sentenced him to pay a fine of $500 and to imprisonment for six months. Luther subsequently removed to Massachusetts and estab- lished a legal residence there, which permitted him to enter in the District Court of the United States, as a case between citizens of different states, an action against Luther M. Borden and others who had broken into and searched his home in Warren. The General Assembly employed counsel to defend Borden, and to carry the case on appeal to the Supreme Court of the United States. Luther alleged in his declaration an unlawful trespass; the defendants pleaded lawful entry as members of a military company acting under orders of their com- manding officer during a period in which martial law had been proclaimed in Rhode Island.
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The pleadings were planned, and the offers of evidence were made to present to the court at trial the question as to which of the Charter General Assembly and the Dorr General Assem- bly was the government of Rhode Island after May, 1842. Justice Story, who presided, "pro forma and upon the understanding of the parties, and to carry up the rulings and exceptions to the Supreme Court," refused to instruct the jury "that a majority of the free white male citizens of Rhode Island . ... had a right to reassume the powers of government, and establish a written constitution and frame of a republican form of government, and that, having so exercised such right, . . . the preexisting charter government, and the authority and the assumed laws under which the defendants in their pleas claim to have acted, became null and void and of no effect, so far as they were repugnant to and conflicted with said con- stitution, and are no justification of the acts of the defendants." Justice Story instructed the jury "that the government and laws" under which the defendants acted "were in force and effect as the frame of government and laws of the state of Rhode Island, and did constitute a justification." The jury found the defendants not guilty, and Justice Story signed a bill of exceptions, and permitted a writ of error. The opinion of the Supreme Court in Luther vs. Borden,; written by Chief Justice Taney, held that the questions presented to the court were political, and that the determination of political questions was not within the jurisdic- tion of the Court. "It rests with Congress to decide what government is the established one in a state. . . . And its decision is binding on every other department of the government and cannot be questioned in a judicial tribunal. It is true," said the court, "that the contest in this case did not last long enough to bring the matter to this issue; and as no Senators or Repre- sentatives were elected under the authority of the government of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts." Discussing the effect of President Tyler's promise to aid the Charter government, the court held that as Congress by statute (February 28, 1795) had provided that "in case of any insurrection in any state against the government thereof, it shall be lawful for the President . . . . to suppress such insurrection," a power that might have been placed in the court had been given to the President, and denied the right of a court to review the action of the President. "If the judicial power extends so far," said the court, "that a court may negative the act of the President, the guaranty contained in the Constitu- tion of the United States is a guaranty of anarchy, and not of order." The court suggested that Congress itself could apply "the proper remedy" if the President "shall fall into error or invade the rights of the people of the state." The opinion concluded: "No one, we believe, has ever doubted the proposition that, according to the institutions of this country, the sov- ereignty in every state resides in the people of the state, and that they may alter and change. their form of government at their own pleasure. But whether they have changed it or not by abolishing an old government and establishing a new one. in its place, is a question to be settled by the political power. And when that power has decided, the courts are bound to take notice of its decision and to follow it."
DORR RETURNS TO FACE TRIAL-Thomas Wilson Dorr, no longer claiming to be Gover- nor of Rhode Island, returned to Rhode Island late in October, 1843. In an "Address to the people of Rhode Island," issued August 10, 1843, Dorr reviewed the suffrage movement, assigned as a reason for failure to establish the People's Constitution the unwillingness of the people of Rhode Island to support it, and announced his purpose to accept the result of the spring election of 1843 and the triumph of the Law and Order party at the polls, and to return to Rhode Island without the intention of further action. He was arrested October 31, 1843, on an indictment returned by the grand jury of Newport County, which charged treason
17 Howard, 1.
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against the state of Rhode Island. The indictment recited overt acts in arms against the gov- ernment of the state committed in Providence County, in the city of Providence on May 17, and 18, 1842, and in Glocester on June 26 and 27, 1842. The indictment in Newport County for offences alleged to have been committed in Providence County, and the trial subsequently by the Supreme Court and a jury in Newport County, conformed to the provisions of the fourth section of the Algerine Act,* but otherwise were distinctly contrary to practice and precedent in the United States. To assure a speedy trial, Dorr, who had been committed to jail without bail, waived a separate hearing on his plea in abatement to the jurisdiction of the court, and consented to trial on the merits, which included the substance of the plea in abatement.
The jury was drawn from a total of 124 jurors and talesmen, of whom 16 had been drawn regularly to serve for the term, 60 were selected and summoned by the sheriff as addi- tional jurors in anticipation of the defendant's right to 20 peremptory challenges, and 48 more were selected and summoned by the sheriff on four writs of venire for 12 men each issued by the court. It was alleged and entered as an objection on the record of the trial that a lawyer who acted as an assistant to the Attorney General at the trial accompanied the sheriff on the quest for additional jurymen and actually wrote the return on one writ of venire. Of the 108 men summoned as additional jurors by the sheriff only one was a Democrat, and he and two other Democrats included in the 16 regularly drawn jurors were not of the trial jury as .finally impanelled. Objections to jurors individually and a challenge to the panel were entered; Dorr used all of his peremptory challenges, and 83 who had been summoned or drawn were excused as having formed an opinion. For the state the Attorney General pre- sented an abundance of testimony tending to prove that Dorr had participated in the attack on the arsenal, and that Dorr had been with the armed insurgents at Chepachet. The jury, under the instructions of Chief Justice Durfee, who presided, that they were bound by the court's rulings on the law and limited to the consideration of the evidence as establishing or not establishing facts that were defined by the court as constituting treason as charged in the indictment, found Dorr guilty of treason.
The defence, and the action of the court with reference thereto appeared in the bill of exceptions filed with a motion for a new trial, which included (1) allegations that the jury was improperly impanelled because (a) it included men who had formed and publicly expressed opinions that showed prejudice against Dorr, (b) the list of jurors actually summoned or reported as "found" by the sheriff consisted of 107 men out of 108 who were known to be opposed to Dorr, (c) the defendant was not furnished with lists of jurors in reasonable time for investigation before the trial; (2) complaint that lists of the government witnesses were not furnished on request a reasonable time before the trial; (3) objections to testimony relat- ing to acts committed by the defendant before the dates of alleged overt acts in arms, intro- duced to establish proof of criminal intent ; (4) refusal by the court to permit the introduc- tion of evidence to prove that Dorr had acted under a constitution adopted by the people of Rhode Island; (5) assertion that treason is an offence that may be committed only against the United States and not against a state; (6) assertion that the fourth section of the Algerine Act was unconstitutional so far as it permitted indictment and trial elsewhere than in the county in which alleged offences had been committed, and that the Rhode Island act of 1838 established a new criminal code was unconstitutional so far as it included a definition of treason and a penalty for it. The trial had opened on April 26, 1844, and was concluded by verdict on May 7. The motion for a new trial was argued June 10 to June 13, and was over- ruled by the court on June 14. On the same day a motion in arrest of judgment was filed, which was argued on June 24 and 25 and denied.
*Vide supra.
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Justice Durfee, on June 25, sentenced Dorr to "be imprisoned in the state prison at Provi- dence in the county of Providence, for the term of his natural life, and there kept at hard labor in separate confinement." The court permitted Dorr's counsel to file, for entry on the records, a bill of exceptions against the court's ruling "that treason might be committed against a separate state," to be made the basis for a writ of error issuing from the Supreme Court of the United States, but denied a motion to suspend execution of the sentence to per- mit Dorr to sue out the writ of error. Dorr was committed to prison in solitary confinement. The effect of commitment was to inhibit recourse to writ of error, inasmuch as Dorr himself could not file a petition for the writ, nor could counsel, since no communication was per- mitted, file a petition as requested or authorised by Dorr. The effect of Justice Durfee's refusal to suspend sentence was to bar an appeal to the Supreme Court through writ of error, and to nullify the bill of exceptions. Dorr's counsel, appearing before the Supreme Court as a friend rather than as authorized counsel, sought to have Dorr brought before the Supreme Court on writ of habeas corpus. The Supreme Court denied the motion,f holding that the court had no original jurisdiction of the matter under the Constitution of the United States, no jurisdiction under the common law, and such appellate jurisdiction only as had been con- ferred by Congress. The court cited the fourteenth section of the Judiciary Act of 1789, which authorized the writ of habeas corpus, but provided that "writs of habeas corpus shall in no case extend to prisoners in jail, unless they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." The Supreme Court held substantially that it had no authority to issue the writ of habeas corpus for jail delivery of a person committed by a state court.
The Dorr trial was one of the longest criminal trials in the history of Rhode Island, and the arguments of counsel, illuminating branches of criminal and constitutional law, of proced- ure and the law of evidence, including the marshalling of precedents, indicated remarkable legal ability in the Bar of Rhode Island. The extraordinary measures taken by the Law and Order government to assure Dorr's conviction-the indictment and trial in Newport instead of Providence County, the selection of the jury from a list of 124 of whom only 16 had been regularly drawn, the rulings of the court during the trial almost invariably against the defend- ant, the charge to the jury so positive that it was almost a direction to return a verdict of guilty-wrung from Dorr, when asked by the court for reasons why sentence should not be pronounced upon him, the answer : "I am bound, in duty to myself, to express to you my deep and solemn conviction that I have not received at your hands the fair trial by an impartial jury to which, by law and justice, I was entitled. . .. This trial, which has been carried through the forms of law, was destitute of the reality of justice, and was but a ceremony preceding conviction. . . . All these proceedings will be reconsidered by that ultimate tribunal of public opinion, whose righteous decision will reverse all the wrongs which may be now committed, and place that estimate upon my actions to which they may be fairly entitled. ... From the sentence of the court I appeal to the people of our state and of our country. They shall decide between us. I commit myself, without distrust, to their final award. I have nothing more to say." Dorr's faith in the people in this instance, was justified. The Law and Order party, in their effort to destroy Dorr, had made a martyr of him. The unseemly haste in committing him to jail, without permitting stay of execution long enough to appeal to the Supreme Court of the United States was the culminating episode in a trial which aimed at conviction at any hazard. A year after his imprisonment Dorr was liberated as the result of a peremptory order of the people of Rhode Island, who had swept the Law and Order party from power in
tEx parte Dorr, 3 Howard 102.
MEMORIAL TO COL. HENRY TILLING HAST SISSON, LITTLE COMPTON
Henry Barnard
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order that Dorr might be released. Democracy had revolted, and was once more triumphant in Rhode Island.
LIBERATION OF DORR-Sullivan Dorr and Lydia Dorr, parents of Thomas Wilson Dorr, petitioned the General Assembly in January, 1845, for amnesty, and the General Assembly voted and resolved that the prayer of the petition "be so far granted as that Thomas W. Dorr be liberated from his confinement in the state prison upon his taking" an oath to support the Constitution and laws of Rhode Island and of the United States. Dorr declined to take the oath. The state election of 1845 was contested on the issue of "Liberation," and Charles Jackson, candidate of the Liberation party defeated Governor Fenner, candidate of the Law and Order party, 8010 to 7800. The Whigs returned to power in 1846, when Byron Diman was chosen as Governor by the General Assembly after failing to obtain a majority of the popular vote, although he had a scant plurality (7477 to 7389) over Governor Jackson in a total vote of 15,021. The liberation of Thomas W. Dorr was accomplished June 27, 1845,* through an act of the new General Assembly of 1845, entitled "An act to pardon certain offi- cers against the sovereign power of this state, and to quiet the minds of the good people thereof." The act forbade prosecution for any "crime or offence" under the Algerine Act, and ordered the discharge of "every person who is under recognizance, indictment or sentence for or on account" of any offence under the Algerine Act; and ordered that "any person who has been convicted of the crime of treason against this state, and is now in prison under sen- tence of the law provided for such offence, shall be forthwith discharged from such imprison- ment." The act did not mention Thomas W. Dorr by name, but there was only one person imprisoned at the time for treason.
The "Republican Herald" (Democratic) reported Dorr's release thus: "Hundreds of citizens are crowding the prison door, and hundreds more in carriages, on horseback, and on foot, are thronging the roads leading to that hated place, to get a glimpse at this victim of persecution, and once more welcome him on his restoration to his friends, the people and to the world. . . . The loud booming of cannon from Smith's and Federal Hills, and the wav- ing of flags from the hickory poles and flagstaffs, give unequivocal token of the general and undisguised joy which pervades all ranks and sexes in the city." On release from prison Dorr was driven through the crowded city streets to the home of his father, and in the evening, again acclaimed by a multitude of people, to the residence of a friend in Cranston. His year in prison had weakened him physically and his health was shattered, never to be completely restored. The release of Dorr was applauded throughout the country; at Cambridgeport, Massachusetts, 100 cannon shots were fired to celebrate the event. Newspapers carried the news of Dorr's liberation from coast to coast, and Dorr was toasted, after the fashion of the times, in public meetings and at patriotic celebrations.
The General Assembly, in May, 1851, restored Dorr's civil and political rights, and in February, 1854, passed an act entitled "An act to reverse and annul the judgment of the Supreme Court of Rhode Island for treason rendered against Thomas W. Dorr, June 25, A. D. 1844." The act in a preamble recited irregularities in the trial, declared that "Thomas Wilson Dorr was thereby wrongfully convicted," and ordered: "The judgment of the Supreme Court .... is hereby repealed, reversed, annulled and declared in all respects to be as if it had been rendered ; to the end that right be done to the said Thomas Wilson Dorr, the clerk of the Supreme Court for the county of Newport is hereby directed to write across the face of the record of said judgment the words 'Reversed and annulled by order of the General Assembly, at the January session, A. D. 1854.'" The new General Assembly of May, 1854, requested the "justices of the Supreme Court to furnish . . . their opinion upon the
*June 27, 1842, Acote's Hill ; June 27, 1844, Dorr committed to prison for life.
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constitutionality" of the act reversing and annulling the conviction of Dorr, and the Supreme Court, in an advisory opinion, declared the act unconstitutional. The court held that the Constitution of Rhode Island (1) established a distribution of powers-legislative, executive, and judicial; (2) vested the judicial power in one Supreme Court; (3) did not authorize the General Assembly to erect a court superior to the Supreme Court or itself to assume judicial functions that would make it a superior court of appeals from judgments of the Supreme Court ; (4) vested in the Supreme Court "the duty of the judiciary in all free con- stitutional governments to decide upon the constitutionality of laws passed by the legislature." The court held also that the General Assembly had no "authority to order the reversal of the judgment to be written on the face of the record." The General Assembly, in June, 1854, on receiving the opinion of the Supreme Court, adopted resolutions declaring that the preamble of the act of January, 1854, asserted "doctrines which the people of the state do not approve," and contained "statements which are untrue," and aquiescing in the decision of the court that the act was "unconstitutional and void." The General Assembly did not, however, repeal the act of January, 1854, thus leaving open the question as to the weight attaching to the opinion of the judges. Advisory opinions are refused by the Supreme Court of the United States and by state courts generally unless the constitution of the state, as in Rhode Island, requires the judges to render advisory opinions upon request. Advisory opinions have not the effect as precedents that follows opinions rendered in the course of actual trial of genuine cases. The Rhode Island General Assembly, on occasion, has disregarded an advisory opinion of the Supreme Court; thus, members of the General Assembly collect mileage for every day of actual attendance, up to sixty, in spite of an advisory opinion that mileage is limited by the Constitution to one journey to and one journey from each session .; If the advisory opinion of the Supreme Court in 1854 was ineffective, the reversal of its judgment against Dorr stands; if the opinion was effective, the court achieved, through the opinion, the independ- ence that Thomas Wilson Dorr as an eminent constitutional lawyer would desire. He was too seriously ill in June, 1854, to care; before the end of the year he died, December 27, 1854, aged 49 years. The Rhode Island General Assembly erected a bronze memorial tablet on the site of Dorr's fort at Acote's Hill in 1912. The fort had been leveled years before in grad- ing the ground for a cemetery. The tablet is attached to a high boulder, which as it stands near the public highway attracts attention to the memorial.
INVESTIGATION BY CONGRESS-The General Assembly, in 1842, had sent to President Tyler an urgent request to intervene in the affairs of Rhode Island and to protect the state from insurrection and domestic violence. A special session was called in March, 1844, to protest "against any interference by the Congress, or by the House of Representatives of the Congress of the United States, with the internal government and constitution" of Rhode Island. Resolutions were adopted which (1) recited the early history of Rhode Island; (2) accused "certain evil-disposed persons" of undertaking to overthrow "the republican form and constitution of internal government of this state"; (3) specifically charged that "Demo- cratic members of the Rhode Island legislature .... in plain violation of their oaths of office" had requested "the House of Representatives to inquire whether the members of said House from the state of Rhode Island are entitled to their seats, inasmuch as a large number of persons entitled, under the People's Constitution, to vote at their elections were excluded from the polls, and the electors were barred from voting for candidates in opposition under said constitution ; (4) "lest silence in the premises should be construed into acquiescence, protested (a) against the right of Congress to decide or inquire "whether the late Charter government of this state was republican in form . said form of government, as republican having been
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