USA > Rhode Island > Providence County > Providence > State of Rhode Island and Providence Plantations at the end of the century : a history, Volume 3 > Part 18
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them in a few lines better than could be done by another in many pages of description : "If we could bring back those ancient judges and see them once more as they existed, in the flesh, what a rich variety of characters we should behold ! They were representative Rhode Island- ers, and to know them would be to know the State in its most ehar- aeteristic qualities. But they have passed away and have left, all but a few of then, little but their names to rescue them from oblivion. We eall the names over and they fall on the ear with an alien and empty sound, conjuring up nothing but a dim procession of shadows without personality. And yet those naked names once stood for veritable men, with strong minds and raey mother wit, and picturesque peculiarities. For illustration : This is the name of some stout old farmer, who through many years has wrung from the rough earth a homely but comfortable living, and has slowly risen by his energy, thrift and practical cleverness to a position of honor and influence among his neighbors. He brings to the beneh the open and deliberate habit of mind which he has cultivated on his solitary farm, turning over and over his solitary thoughts. He knows but little law, but he ponders and waits for his mind to settle slowly to its conelusion, which is pretty sure to be right. This is the name of some country squire, who, having familiarized himself with the statutes and a few of the horn-books of the law, has written deeds and wills for his neighbors, or managed their petty lawsuits for them-half lawyer, half farmer, and who after frequent service in the Town Council or the General Assembly, has accepted for the quiet afternoon of a useful life the chief justiceship of the Common Pleas of his county. He brings to the bench a shrewd sagacity, not unmixed with self-eoneeit, and a practical comprehension of legal questions, which gives him an as- cendeney over his associates, often too complete. This is the name of some city trader or craftsman who has rubbed his wits keen and bright by collision with many minds, who knows a little of many sides of life without knowing how very little he knows, and who is therefore too ready to look down upon slower but deeper men. He brings to the bench a brisk but positive perception, which is very valuable when steadied and controlled by more cautious judgments. This is the name of some gentleman of hereditary influence, who with less prac- tical energy brings to the bench a tincture of liberal education and refinement. Lastly this is the name of some leading statesman or lawyer who has the capacity and learning which eminently qualify him for the office of judge".
The last of the old order of chief justiecs was Isaac Wilbour. He was a farmer from Little Compton, but had been much in publie life, serving in the General Assembly as speaker of the lower house, as representative in Congress and as lieutenant-governor. He was a man of imposing presence and dignified address. In his varied career
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he had picked up some disjointed knowledge of law, which, according to tradition, he liked to display a little too magniloquently ; but how- ever this may be, he held the office for eight years under annual elec- tions, from 1819 to 1827. Ilis successor was Samuel Eddy, the first of the new regime. With him began a line of trained lawyers, men who brought to the bench ripe knowledge, sound learning and minds trained in legal channels. Judge Eddy was born in Johnston, R. I., in 1769, and died in 1839. He graduated from Brown University in 1787, and held the office of clerk of the Supreme Judicial Court from 1790 to 1793. He served as secretary of state from 1798 to 1819, the latter year being elected to Congress as a Democrat, and served until 1825 in the lower house. He was elected chief justice in 1827, holding th office until 1835. When elected to the bench he was already well and widely known as a man of mcorruptible integrity. He was well- grounded not only in law but in the history of the State as well, in metaphysical philosophy, in theology and physics. He has been said to have looked for the spirit of the law in the letter of the law; to expect exactness in the language of statutes, judicial decisions and legal instruments, and to require it in legal proceedings and in the performance of legal duty. His decisions were the result of a careful investigation of every fact and principle of law bearing on the case, and when reached they were delivered scrupulously as reached. He was a man of great strength and honesty of mind who did his work well.
Succeeding him came Job Durfee as chief justice. He was born in Tiverton in 1790 and died in 1847. He graduated from Brown in 1813 and the following year was elected to the General Assembly. Hc served in that body until 1819 and again from 1827 until 1829, serving as speaker in 1828. He was elected to Congress as a Federalist in 1821 and served until 1825, when he declined a renomination, and retired to his farm, where he devoted himself to study and to literary pursuits. He later resumed the practice of the law, and in 1833 was appointed associate justice of the Supreme Judicial Court, and two years later be- came chief justice. This office he held with honor, serving during the trying days of the Dorr troubles. He died in office. Judge Durfee was the author of a volume of poems and of many articles, including one philosophieal treatise. He was well-grounded in the general principles of the law, having a mind by which they were readily grasped and retained, and in the trials of cases he liked to reason out his decisions from such principles, rather than rest them upon reported cases. He loved to take large views of things, as is shown in some of his reported charges to grand juries,, which were not merely dry expositions of positive law, but thoughtfully pondered dissertations on the philoso- phy and ethics of jurisprudence.
After Judge Durfee, Richard W. Greene suececded as ehicf justice,
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but, as he has been referred to at length in other portions of this work, it is unnecessary to speak further of him in this place. As a judge he excelled in jury trials, being prompt and accurate in his rulings and exceedingly direct and clear in his charges, using words easily under- stood by the jury. In trials, to the court he was patient and attentive in hearing, and in deciding gave opinions that were clear, orderly, closely confined to the points at issue, and rather inelaborate, like the oral opinions of the earlier judges.
William R. Staples followed as chief justice. Judge Staples was born in Providence in 1798, and died there in 1868. He also graduated from Brown University in 1817 and was admitted to the bar in 1819. In 1835 he was elected associate justice of the Supreme Judicial Court, holding the office until 1854, when he was elected chief justice. The duties of this latter office were not congenial to him, and he resigned it in 1856, and until his death devoted his time to literary and kindred pursuits. He was one of the founders of the R. I. Historical Society, the author of the Annals of Providence, and the editor of many his- torical publications.
Succeeding him came one known in judicial history in this State as "The great chief justice". Judge Ames was sworn in as chief justice August 11, 1856. He was probably the most learned judge that up to that time had occupied a seat upon the bench of this State. As a constitutional lawyer he was without an equal. He possessed the greatest abilities for acquiring knowledge, and he used these abilities assiduously in its pursuit. An anecdote is related of him, that in a conversation in Washington, shortly before the late war, a discussion arose as to the difference between Northern and Southern gentlemen, when Governor McDowell of Virginia said : "I have been listening to a young man from Rhode Island for the last two or three days; he knows more law than all the judges in the Supreme Court; he knows all the law from Doomsday Book to the present; and has it all by heart, and he can talk like a Virginian". Judge Ames was a man of the highest honor and of the firmest convictions. In another place we have referred at length to his great opinion in the case of Taylor v. Place, which settled the controverted question of two centuries. He was a learned jurist, an upright and fearless magistrate. The inscrip- tion upon the stone that marks his grave tells the history of his life with rare felicity : "Upright, learned, fearless, just, sincere". He died in 1865.
Charles S. Bradley held the office from 1866 to 1868. He was born in Massachusetts in 1819, graduated from Brown in 1838, and was admitted to the bar in 1841. He rapidly became known, not only for his efficiency as an advocate, but for his surpassing eloquence. He was elected as a Democrat to the Supreme Court by a Legislature overwhelmingly Republican. It may not be out of place at this time,
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in answer to the eriticism sometimes made of partisan eleetions to the bench, to mention only among many cases those few in recent years of Judges Bradley, Bullock, Burges and Potter, as well as George H. Brown, clected, but who refused to accept the office, all Democrats, and all elected by a Republican Legislature. Judge Bradley died in 1888. The few years that he held the office were sufficient for him to show marked ability as a judge.
He was succeeded by George A. Brayton. He was born in this State and admitted to the bar in 1827, after graduating from Brown in 1824. In 1834 he was elected town clerk of Warwick. He was a member of the convention that framed the Landowners' Constitution, as well as of the convention that framed the present instrument. Hc was a representative in the Assembly in 1832 and 1843, and in that year was elected an associate justice of the court. In 1868 he became chief justice, which offiee he held until he resigned in 1874. He died in 1880.
Among the later occupants of the office who have held it within the last quarter of the century are the late Chief Justice Thomas Durfee, Charles Matteson, who retired in 1900, and the present chief justice, John H. Stincss.
Before closing these short sketches of the judges of the Supreme Court mention should be made of one, who, by his ready and quaint wit, is probably more often quoted than any other man who has held that position. We refer to Judge Shearman. Judge Shearman is painted by one who knew him "as a man who, without any pretense to superior sanctity, vast acquirements or greatness of any kind, was a good man, knew what was worth knowing and discharged faithfully the duties of all the positions in which it had pleased God or the people to place him, whether as a lawyer, residing in the village of Wiek- ford, as a member of the Assembly, or as a justice of the Supreme Court holding the Courts of Common Pleas throughout the State". One well known charge of Judge Shearman's is often quoted. An action was brought against an owner of a dog by a plaintiff who had been bitten in the leg by the animal. After the evidence had been introduced and the counsel had argued at length upon the merits of the case, Judge Shearman charged the jury substantially as follows : "Gentlemen of the jury, much has been said in this case about dogs and men, and as to which is the nobler animal of the two, One thing I can say to you, that no dog was ever known to be educated at the expense of the government and then rebel against it". It is needless to say that the time was during the Civil War. The jury after hear- ing the charge retired and found for the plaintiff. He has been likened in many ways to Lincoln in his love of an apt anecdote or a story that hit the nail on the head. When on one oeeasion an eminent attorney from New York came to Rhode Island to defend some crim-
DECEASED MEMBERS OF THE BENCH AND BAR OF RHODE ISLAND.
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inals, he was mueh impressed by Judge Shearman's ability and said to hin: "Why do yon stay in such a little place as Wickford? Why don't you remove to New York, where there is a wider field for your talents?" Said the judge: "Take the gamblers and thieves out of New York and it is not so much larger than Wickford after all". When a lawyer of rather indolent habits was ridiculing the activity of one of his younger brethren, Judge Shearman said : "Well, well, an engine of one cat power running all the time will do more work than an engine of forty horse power standing still".
An action was tried before Judge Shearman once, arising out of an accident whereby a carriage driven by a woman had run over a child. It was in the days of the early '60's, when ladies were aceus- tomed to wear their hair confined in bags at the back of the head, called waterfalls. "Gentleman of the jury", said Judge Shearman in his charge, "this defendant was driving along the road with the whip in one hand and the reins in the other and something on the back of her head, I don't know what you call it, only I know that it wouldn't be idolatry to worship it, for it's neither the image of anything in the heavens above or the earth beneath or the waters under the earth".
During the eall of the doeket at one time after the braking out of hostilities, a ease was reached, Smith v. Peaeedale Mfg. Co. "Well, well", said the judge, "that's no name for these times. Ought to call it Warville". One day shortly after Fort Sumter had been fired upon, and while the judge was engaged in the trial of a case before a jury, one of the volunteer officers, a member of the bar, who was shortly to leave for the front, entered the court room in uniform. Judge Shear- man stopped the ease and called the offieer to the bench. "Mr. So- and-So", said the judge, "I've got a boy that's crazy to go to the front and his mother won't let him go, but now I'm going home to- night and tell her to let him go if he wants to in your company, and I guess he'll be perfectly safe. Go on, gentlemen".
During a term of court at South Kingstown, Judge Shearman's own county, a man was brought before him for stealing a horse and the court sentenced him to six months in jail. It so happened that the defendant was released a week before the next term of court. He took advantage of this opportunity to steal another horse ; was arrested on the spot; the ease immediately brought before the grand jury; an indictment found, and the following week, when Jndge Shearman again held conrt, the man was brought before him, tried and convicted. This time he was sentenced to a year. Upon liberation he onee more committed some felony or misdemeanor, and but two terms after the last sentence again appeared before the bar. This time he pleaded guilty. "Now, now", the judge remarked, "I can't spend all my time trying yon. I retire from this conrt in about six years and a
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half. I'll give you seven years now and let some other judge try you next time". History fails to record what the result of this was.
In an action, trespass for assault, Judge Shearman gave substan- tially the following charge: "Gentlemen of the jury, the plaintiff charges the defendant with assaulting him, and the defendant says that the plaintiff took away his girl from him. Now, gentlenien of the jury, undoubtedly if the plaintiff did take away the defendant's girl the defendant had the right to resent it. We've all heard of girls that leave their father and mother for a man and stick to him closer than a brother, but my opinion is, gentlemen, that that kind of girls is mighty scarce around this part of the country."
For one thing Rhode Island can be proud. From the earliest days of the Colony to the present time, no man has sat upon the bench of this State at whom the finger of reproach could be pointed as a corrupt judge. In the earlier days, however deficient in legal learning and practice they may have been, they were honest men. Since the con- stitution the bench has been composed of men, honest, fearless and pure. Happy is the State whose prosperity is protected and safe- guarded by a judiciary fearless and uncorrupt.
Cicloand . Men
Public and Private Finance.
1
CHAPTER III.
PUBLIC AND PRIVATE FINANCE.
The treatment of the financial history of the state being somewhat limited by the scope and plan of this whole work, it has been deemed advisable to lay special emphasis on one aspect of the subject, but at the same time to cover all of the more important questions involved. The point of view selected is that of the legal relations of the subject of taxation, because from them have arisen many points which effect the constitutional relations of local with central government. This close association of finance in Rhode Island with the development of the principles of home rule is one of the most unique facts in the state's history.
The history of the public finances of Rhode Island is divided into three periods. The first lasting until 1710; the second ending with the year 1800; the third covering the present century.
PART I-COLONIAL AND LOCAL TAXATION
The sources for the first period are the Rhode Island Colonial Records, Vol. I-III. The Colonial and Provincial Records of Massachusetts. Felt's Massachusetts Currency. Williams's Key to the Indian Language. The Providence Town Papers, Portsmouth Town Records, and the Warwick Town Records. Some secondary authorities are noted in the general bibliography of the state's history.
The financial history of Rhode Island is not an isolated topie that ean be treated apart from the economie and politieal events of which it was partly the cause and partly the effect. It reflects both the peculiarly narrow limitations of the state government and the exees- sive individualism of the people, which were part and pareel of the relations of the citizens toward the local government, and of the local government toward the eentral government. It illustrates the world- wide movements during the seventeenth century in which the state had some share.
The fiscal history of the colony began in the three towns, Providenee, Portsmouth and Newport-Warwick not having had any local govern- ment until the formation of the colonial government in 1647, had therefore no fiscal institutions. Between the two towns of Ports- mouth and Newport on the one hand and Providence on the other the contrast was marked. In the former a singularly complete form of civil government seems to have been at once established. It was not a development of a generation. The leading spirits of the settlements were men of some property and a large degree of legal training. Com- munal labor may have existed in Portsmouth-bread was baked by the
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town baker-but in Newport there were fewer traces of it. Individual effort was encouraged by the clear recognition of the right of private property in land, although here as in Providence fee simple title could not be sold to a non-resident without the town's approval. The system of government consisted of a legislative department-the town meet- ing; an administrative department-the judge and elders, elected to serve for one whole year or until their sueeessors were appointed, and vested with ordinance making powers, subject to revision by the town meeting; and a judicial department with original cognizance of all kinds of cases. A miniature state was formed in 1640, of which the two towns were eomponent parts. To each local organization was reserved full and complete authority in all strietly loeal matters, while the eentral government with its governor, deputy-governor and assist- ants and general assembly was vested with authority over the general matters of the two towns. Here then was a thorough-going system of governmental organization, in which individual rights and privileges on the one side were balanced by individual obligations and duties on the other. The individual yielded obedience and was protected by the supreme state. The sense of corporate life was the dominant force of the whole scheme.
Here then were also the conditions precedent to a thoroughly ade- quate fiseal system. From the beginnings of the settlements taxation was resorted to. The first proposed levy upon the people was in the form of a land tax. A general fenee five rails high was to be erected "at the head of the spring" in Portsmouth, and the charge was "to be borne proportionately to every man's allotment"; but the fence was not built and the tax was not assessed. Subsequent taxes were levied according to the ability of those taxed. The Newport men ineorpo- rated into their first compact of government the clause, "we do engage ourselves to bear equal charges answerable to our strength and estates in common". Public service when not gratuitous was paid for from the treasury. Roadways were built, "wolf catchers" were provided and the town watch was maintained at the public charge.
The common land was the property of the towns and their income from taxes was augmented by receipts from sales of it and by fines for breaches of the law. Payments were made by the treasurer upon the approval of bills by "the judge and some of the elders", and exaet accounts of such transactions were rendered to the quarterly town meeting. At the establishment of the two-town government in 1640 each town was required "to have a joynt and an equal supply of money in the treasury for the necessary uses of the same." The gov- crnor and one assistant in one town and the deputy-governor and one assistant in the other town approved the bills of the general govern- ment. The treasurers of each town were to keep an accurate account of all moneys "received or dispended, the charges were to be equally
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balanced and each town was to bear its truc proportion". The amounts involved in these mutual transactions were sometimes large, and had not the fertile soil yielded good returns and had not wealth been prevalent, they would have constituted a heavy burden on the people. In Mareh, 1641, the town of Newport was indebted £111 3s. 4d. There is no record of the amounts paid during the year, but if the Portsmouth debts were proportional to those of Newport, the un- paid aeeounts would have averaged more that £1 for every male on the island. In the same year Indian corn was made legal tender at four shillings per bushel "in all payments for debts" between man and man. The per eapita cost of the general government therefore was five bushels of eorn from each annual erop.
The conditions in Providenee were in sharp contrast to those of the island towns. Here both the soil and the people were poor. Though the settlement made by Roger Williams antedated those made by Cod- dington and his friends, Williams had no seheme of eivil government nor had his friends sufficient legal training or education to evolve one. By the time that he could have patterned after Newport, elements of discord had already begun to play an important part in local affairs. In Newport no man was to be molested for difference of "doctrine". In Providenee the broader ground was taken, that government eon- eerned only "eivil things". Many of the adventurers who soon began to seek association with Williams were prone to interpret the absenee of religious powers in the voluntary compaet of government as an absence of moral obligations also. The pure economie motive beeame the sole balanee wheel of government and a condition approaching anarchy resulted. The original "purchasers" attempted to retain exclusive ownership of all the common lands, and the quarrels over land questions absorbed the publie attention. The view of Samuel Gorton that no local government was valid unless sanetioned by the authorities in England had many adherents in Providence, and the free play of self interest led to excessive individualism, to a system of voluntary government so unstable that its deerees could only be enforeed by the individual eonsent of each and all, and to a general laek of the sense of corporate life. Local government was here evolved out of the bitter necessities of experience, and its evolution was many years in process.
Here then were no conditions precedent to a financial system. The ineome of the town was derived from fines, the collection of which was almost impossible, from sales of land, the payments for which were in some eases delayed for many years, and perhaps from taxation, though the earliest reeord we have of a tax is dated 1650, when an assessment was made on live stoek only. The treasurer was first eleet- ed monthly, then quarterly, and finally annually, but his duties were not burdensome. He expended "the town stoek" as the town should
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