State of Rhode Island and Providence Plantations at the end of the century : a history, Volume 3, Part 9

Author: Field, Edward, 1858-1928
Publication date: 1902
Publisher: Boston : Mason Pub. Co.
Number of Pages: 728

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"2d: That whereas at ye very time, when we are risking our lives

THE POLITICAL DEVELOPMENT OF THE TOWNS.

and Fortunes to extricate our Selves out of the Power of those that would fleece us of our Money without our Consent to their own Emohu- ment we are Surprised to find that our General Assembly have lately Steped into the same path by Passing An Act granting themselves large Daily Wages without our knowledge or Consent, which when we Consider if we indulge them to go on without Controul to Vote them- selves a penny they haveupon the same Principals a right to Vote them- selves a Pound. We cannot but Shudder at ye Consequence. There- fore recommend to you to insist upon a total Repeal of Said Act as Altogether Unconstitutional and Arbitrary Nevertheless we all agree that the Laborer is worthy of his Hire, but then those who Employ a Man have an Undoubted Right to Agree with & Pay him, therefore We would Recommend that an Act be Passed, that for ve future, the Sev- eral Towns be Directed to Agree with their Deputies for their Wages at ye time of Chusing them, and that each Town pay the Expence of their own Deputies.

"3d: We View the Several Militia Laws with concern when we consider ye Universal Uneasiness and Murmering that hath been Occa- sioned thereby among ye good People of this State. Occasioned as we conceived partly by ye Advancing of ye Officers Wages, and not ye Soldiers, and partly by ye Militia being so often called into Actual Service. In regard to ye Officers Wages and ye great Disproportion there is between them and ye Soldiers, and when we have considered them in every Point of View, and find but very Little Difference in their Circumstances or Duty in Short in Nothing but their Wages, we earnestly wish ye same may be Remidied. In Regard to ye Militia's being so often called into Service we See many evils arising therefrom : the Farmer ye Mechanic and ye Laborer obliged by ye Power of Gov- ernment to take ye Field against their Inclinations, therefore go through all ye Duties of a Camp with Grumbling & Reluctance thereby Disaffecting many to ye Service that otherwise would be good Soldiers : Many that are now called upon Altogether rendered unfit for the Duties of a Camp either by Age or Bodily infirmities and can by no means Act with that Sprightliness Necessary in a Soldier together with Many More Difficulties that might be pointed out all which tend to create expence to ye Public without that Advantage that ought to be expected from them all which we point out hoping ye Same may be put upon a Better footing.

"In order to remedy ye whole we Desire that you endeavor to Obtain An Amendment of ye Several Militia Laws by curtailing the Militia officers wages One half and that to be Added to ye Non Commissioned officers and Soldiers Wages in such Proportion that the expence of a Company or Regiment be the Same as it now is. And that one Quar- ter part of ye Militia in this State be Immediately Ordered to be in- listed and formed into Companies and Regiments with Proper officers of every Rank Necessary to command ye Same both in Service and out : to be called & known by ye Name of Minute Men to be Immediately Accoutered with every thing Necessary for a Soldier in Service, and

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS.

that they Always hold themselves in readiness to march at a Moments Warning either in ye State or out of ye Same as ye Governor & Council shall order and that they be allowed Such Wages when in Actual Ser- vice as shall be sufficient to Encourage both officers & Soldiers to Un- dertake and Perform ye Service with Cheerfullness; and that at all times when a Military force is Wanted ye Minute Men to be all called into Service before ye Militia be called for

"All of which is Humbly presented by Gentlemen your most obedi- ent Humble Servants the Committee

Ezekiel Cornell. William West. Rufus Hopkins".1

These instructions which on April 28th, 1777, it was voted to receive and that "the same pass as a Resolve of this Meeting", show also something of the attitude of the town toward the central authority. The towns were jealous of their privileges and not reluctant to criticise the acts of the General Assembly. They were also anxious that the personal independence and rights should be guarded.

The towns other than Scituate did not take such extreme ground, but maintained that "the General Assembly of this colony have, in their representative capacity, the only exclusive right to lay taxes and imposts upon the inhabitants of this colony".2 The Collector at New- port was for a time obliged to shelter himself on board ship in the harbor. This reluctance to submit to such dominance of the mother country as they thought ought not to be exercised because of the free- dom granted by their charter continued to appear throughout the whole Revolutionary period. In 1773, it was declared "Insomuch as the British Parliament have undertaken to raise a Revenue in the American Colonies by a duty upon Tea ; We, the Freemen of the Town of Providence, legally assembled in meeting cannot be silent on so in- teresting and alarming occasion".3 In the previous year the spirit of the town had been shown in the burning of the schooner "Gaspee", which had been stationed in Narragansett Bay to enforce the laws which had been imposed on the colony. The British authorities offered a liberal reward for the apprehension of those who participated in this affair, but their indentity was not disclosed though they were well known to the people of the town. The town of Providence also gave its hearty sanction to what is known as the Rhode Island Declara- tion of Independence, which was enacted by the General Assembly in May, 1776.ª The Revolutionary War brought some new duties to the towns in the way of military action and the provisions for meeting the expense.

1R. I. Hist. Soc. Manuscripts, vol. iii, No. 500.

2R. I. Colonial Records, vol. vi, p. 452.

3Town Meeting Records, Dec. 4, 1773.

+R. I. Colonial Records, vii, p. 522.

THE POLITICAL DEVELOPMENT OF THE TOWNS.

A charter was granted to Newport in 1784 incorporating it as a city, because "under the present government of the said town, it hath been found impracticable to devise, consider, deliberate, and determine upon all such laws and regulations as the emergencies of the said town may, from time to time, require". There was provision for a govern- ment by a mayor, four aldermen, six common councilmen, and a city clerk. The mayor with the aldermen and councilmen were to consti- tute a city council for the transaction of general business. The alder- men were to have certain powers similar to those of the justices of the peace and together with the mayor were to be a city court. This char- ter was repealed on March 27th, 1787. The records of the General Assembly give the following account of the episode in Newport politi- cal history :

"Whereas, divers of the inhabitants of the city of Newport pre- ferred a petition and represented to this Assembly, that about two years since a number of the inhabitants of the then town of Newport convened in town meeting, and without consulting many others of their fellow townsmen, or giving them an opportunity to consider the consequence and importance of a change in their town regulations, and of introducing a mode of government novel, arbitrary, and altogether unfit for free republicans, did hastily, and without due and proper consideration, prefer a petition to the General Assembly of this state, to incorporate the said town into a city; that the General Assembly were then pleased to grant the same, since which they have experienced many inconveniences and indignities, unknown to them before said incorporation, injurious to their property and civil liberty, and incompatible with the rights of freemen; that the choice of the mayor, aldermen, and common council is effected by a few leading, influential men, who, when chosen, have the appointment of all city officers", etc. The petitioners for the repeal claim that the powers are indefinite, the administration expensive, the mayor having the same salary as the governor, and that for all these reasons the charter should be vacated and the old town system should be restored.

After the Revolutionary War the towns settled down to the peaceful development of their resources and opportunities. Matters of local improvements occupy more of the attention of the commercial towns while the rural towns change but little in the range of their activities. The Bay became a busy highway of commerce. The towns along its shores rapidly increased in population and the administration of the more thickly settled towns became somewhat difficult under the old town systems. At Providence there arose in the first quarter of the nineteenth century a strong demand on the part of the merchant class for a more centralized form of local government. The attitude of the town as well as of the colony and in the later days of the State had 6-3

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS.

uniformly been opposed to centralization, and the opposition of the conservative element at Providence was only a natural reflection of what was the general sentiment.

CITIES.

In 1825, Providence had a population of about 16,000 inhabitants. It was impossible to gather at a town meeting even the small number of these, probably less than 1,000, who under the system of restricted suffrage were entitled to the franchise. The large number of inhab- itants who were not entitled to a vote here, but would not have been de- nied the ballot in other States, were also restless under the narrow lim- itations of Rhode Islandlaw. Asusual in Rhode Island political changes came slowly. The question of a city government for Providence was agitated and at length, on April 16th, 1828, it was resolved by the town "that it is expedient that the town of Providence be invested with the usual power and authority granted to City Corporations". Commit- tees were appointed draw tentative schemes of city government, to esti- mate the cost of the change, and to furnish information upon the pro- posed change. In 1830, the General Assembly granted a charter to the town which should become operative provided three-fifths of the free- men should approve by a ballot signed by the freemen voting. Some- thing over 700 freemen voted. Though a majority favored the new charter the majority did not reach the necessary three-fifths and the charter was not adopted. In the following year the weakness of the existing government was made evident in its endeavor to suppress a riot which arose in the town. It was necessary to call upon the State for assistance to maintain order which it was believed that a well organized city government easily would have secured in its limits.1 A vote was again taken upon the charter and on November 22, 1831, it was adopted by a majority of 459 to 188. The charter became opera- tive the first Monday in June, 1832. In accordance with an act of the General Assembly the town had been divided into six wards, in each of which elections had been held. Four Common Councilmen were elect- ed from each ward, a Mayor from the properly qualified citizens and six Aldermen were chosen. On the day set for the inauguration of the city government, the Town Council met at the State House to put off the functions with which it had been for so many years invested. The President of the Town Council administered "the oath of office or affirmation prescribed by law" to the Mayor and to the Aldermen- elect and in this act the powers of the Town Council passed from them to the newly inaugurated officers. The Mayor then administered the same agreement to the Councilmen elect. The above officers together form the City Council and in convention elected a city clerk. The record of this first day of the city's existence says, "His Honor the Mayor

1Staples, Annals, p. 396.

THE POLITICAL DEVELOPMENT OF THE TOWNS.

then addressed, the City Council at some length in a most able and eloquent manner, after which the City Council separated and the Mayor and Aldermen retired to the Senate Chamber".1 The Mayor and Aldermen constituting one board, in a general way, become succes- sors to the powers formerly exercised by the Town Council. The Common Council in theory represent the citizens and to them are referred such matters as formerly required the approval of the town. The two boards in convention "is theoretically an assembly of the inhabitants of the town and performs such duties and exercises such powers as formerly belonged to the freemen in town meeting assem- bled. Modifications in the form of government have indeed taken place, but they have usually been made with extreme reluctance and not until the necessity of the time demanded change and have not been for the purpose of testing new theories of municipal adminstration"."

Town meetings are still held in Providence for the single purpose of transacting affairs in connection with the bequest of Ebenezer Knight Dexter, who left a greater part of his estate to the town in 1824, with a restriction requiring a meeting of not less than forty freemen to vote upon its administration. This meeting is regularly held on the third Saturday in December, is regularly warned and the time is an- nounced by four church bells. During the interim between town meet- ings the Mayor and Aldermen as successors of the old Town Council have the donation in charge. One of the Aldermen visits the Dexter Asylum for the Poor weekly and on "quarter days" the Mayor and Aldermen meet at the Asylum and according to the records "The Mayor and Aldermen accompanied by the officials present make a minute and particular examination of the Asylum and inquire into the condition of the several inmates."

Other towns within the State later obtained charters of incorporation as cities. The Mayor, Aldermen and Common Council constituted the usual division of authority, the City Council being the convention of the preceding. In some of the cities special officers of the old town system have been retained for special functions and some are retained whose functions have now almost if not wholly disappeared. New- port for a second time became a city in 1853, and has the usual gov- erning boards. Pawtucket was incorporated in 1885. Woonsocket obtained a charter in 1888. Central Falls was incorporated in 1895. In general the powers of the old town councils passed as in Providence and gradually new functions were assumed by the city which required new officers and new methods. In Rhode Island as in other parts of the United States there was a tendency during the latter part of the nineteenth century to impose the authority of the local state upon the chartered municipalities and to limit the application of the principle

11 City Council Rec., June 4, 1832.

2Wilson, Town and City Government in Providence, p. 75.

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS.

of "home rule for local subdivisions". The success of some of these attempts has in some respeets modified the old town independenee which was so strong an element in the early life of Rhode Island.

THE INFLUENCE OF RHODE ISLAND TOWNS.

As has been said, the counties in Rhode Island have been little more than divisions for convenience of judicial administration. The towns, however, have from the first given character to the development of the politieal life of the colony and State. The early towns have been sub- divided and in some instances the parts set off have been again united to the original political unity. The method of apportioning repre- sentation among the towns has brought about a system of State repre- sentation which naturally gives rise to friction between the urban and rural sections of the State. The independence of the early towns made them jealous of any centralization of authority and often it was danger and pressure from without that held them together rather than any internal cohesion. The central government was therefore given only so mueh authority as was essential to the performance of strictly neces- sary functions. The towns have even taken from the eentral govern- ment powers which they granted to it and proceeded to exercise these powers again themselves. "The original towns, Providenee, founded in 1636, Portsmouth in 1638 and Newport in 1639, were really separate colonies, self-instituted municipal corporations, that existed before there was any Rhode Island, and that made that colony when they united under the first charter in 1647, the fourth town, Warwiek, being then admitted. This has been so held in August, 1900, by the Supreme Court of Rhode Island in the case of the City of Newport v. Horton".1 During the early days of the United States the Constitution was bit- terly opposed in Rhode Island and for a time after it went into opera- tion Rhode Island stood alone, an independent State, contending for the principles for which the towns in their whole period of existenee had stood, the security of religious liberty. As ever reluctant to change, the Federal Constitution was only adopted by a majority of two on May 29, 1790. "By making herself an alarming example of what the unbridled rule of the multitude may come to, Rhode Island did much to bring the other States to adopt that Federal Constitution which she was herself the last to accept".2 The towns were even then not willing to act in any considerable degree of harmony. The "Dorr War" of 1842 showed how firmly the early town system of attaching the franchise to the landholder had become rooted in the State. The People's Constitution of the preceding year had received a vote of 4,960 freemen and of 8,984 non-freemen. Of the free white adults at

1Eaton, Origin of Municipal Incorporations, Worcester Magazine, Jan., 1901, p. 56.

2Bryce, American Commonwealth, vol. i, p. 18.

THE POLITICAL DEVELOPMENT OF THE TOWNS.

this time not one in ten had the voting privilege owing to the $134 free- hold requirement. The result of this "War" was a great liberalizing of the franchise with the introduction of property and registry voters into the towns, though the property qualification of earlier times is still required for those voting for certain officers.

The towns brought the colony into being, they determined the action of the State in the Revolutionary days, the name of the State of Rhode Island and Providence Plantations emphasized the individuality of the divisions and the existence of two capitals till the end of the nineteenth century gave a unique distinction to the local elements of the state life, which is also evident in the statute requiring that the electoral vote shall be cast in a third town, "at Bristol, in thic county of Bristol."

In the beginning, the settlements had been compelled to fashion for themselves such government as the consent of the inhabitants would allow. After the grant of the charter of 1643-1644, "their hopeful Beginnings" were "approved and confirmed". By the union of the towns in 1647 the element of colonial authority was introduced. Under the authority of the town, crown and colony the inhabitants lived till the separation from England in 1776 removed them from the authority of the crown and left only the authority of the town and colony. With the union under the Articles of Confederation a new authority, weak though it was, was introduced. When the Articles ceased to bind the State there followed a short period of allegiance to the authority of the State government and the town government only. With the adoption of the Constitution a third authority was again in- troduced, and in Providence in an exceptional way through the survival of the old town government after the adoption of the city charter, in their respective spheres there exists to-day the authority of the town, city, state and national governments.

The attempts to do what the Simple Cobbler of Aggawam had con- fessed to be beyond the "Artique" of his comprehension to show how "all Religions should enjoy their liberty, Justice its due regularity, Civil cohabitation, moral honesty, in one and the same Jurisdiction", had brought into existence institutions founded on principles which have in the words of Gervinus "not only maintained themselves here, but have spread over the whole union. They have superseded the aristocratic commencements of Carolina and of New York, the high- church party in Virginia, the theocracy in Massachusetts, and the monarchy throughout America."

Telarge Grafton Hilson

The Struggle for Judicial Supremacy.

CHAPTER II.

THE STRUGGLE FOR JUDICIAL SUPREMACY.

In the Colony of Rhode Island, among all the English speaking settlements, the judicial power gave the earliest and best promise of development. The code of 1647 was, and is, unique in the early or- ganic law of America. And yet in Rhode Island the development of the judiciary has been of the slowest. To study it is to follow it from its source in the simple compact of the people, where no differentiation can be discerned between the legislative and judicial powers; to see it gradually taking shape and form under the charters; to observe its union with and subordination to the legislative department, and to watch the struggle in which, under the constitution, but still within comparatively recent years, it contended for its constitutional prerog- atives, until that day when Chief Justice Ames forever settled its position as a co-ordinate branch of the government under our political system.

To one accustomed to the acknowledged position of the judiciary it seems scarcely credible that for some years after 1856 this power could be questioned. The union of the judicial with the legislative power in Rhode Island; the existence of a department that could make, interpret and enforce its own acts, had for so long been a recognized fact in this State that it was difficult for the people to realize, even sixty years after the adoption of the federal constitution, that the judiciary-so long the creature of the legislature-was in many ways its master ; to understand that there had arisen a power which could say, "within these fixed lines you may move and no farther". Such a power was not only misunderstood by the many, but was feared as well, as a departure from the conservative and almost primitive politi- cal system under which the State had existed for two hundred years.

The first recorded agreement for a civil government entered into by the settlers of Providence, some time between 1636 and 1638, was as follows: "We whose names are hereunder, desirous to inhabit in the towne of Providence, do promise to subject ourselves, in active and passive obedience, to all such orders or agreements as shall be made for public good of the body, in an orderly way by the major

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS.

consent of the present inhabitants, masters of families, incorporated together in a towne fellowship, and others whom they shall admit unto them, only in civil things".

This clearly refers to a pre-existing agreement between the original comers which has not been preserved, if in faet it were more than verbal.

The settlement of Providenee was quickly followed by gatherings at Portsmouth, Newport and Warwiek. Providence, Portsmouth and Newport, the two latter towns soon uniting, had each a form of volun- tary self-constituted government. The settlements were merely volun- tary associations of individuals. Williams, speaking of this period, said, "We had no authority for civil government". In the eabin of the Mayflower, in the harbor of Provincetown, sixteen years before, a small body of men had declared that "we do covenant and combine ourselves together into a eivil body politick and by virtue hereof to enaet, constitute and frame such just and equal laws", etc. Their patent had failed them for lack of jurisdiction over the territory, but they were sufficient unto themselves, and set their hands to what has been declared to be an example of the original civil eompaet of which philosophers have dreamed. The compact entered into by the first eomers of Providence is apparently an agreement to be governed by the will of the majority, but, as stated by Williams, they admitted that it was a government without authority. However this may be, this general meeting of the inhabitants, unrestrained by any constitution, was the source of all law and exercised all the functions of govern- ment.

As a town meeting it enacted the laws; as a town meeting it ad- judicated upon the breaches of these laws.

The early years of the settlements were years of dissension and division. They recognized no superior power or central government, and even on one oceasion appealed to the hostile government of Massa- chusetts.

So far as appears, the first attempt at a judicial determination of controversies among the inhabitants of Providenee was by arbitrators. A committee appointed by the town framed a quite elaborate body of rules, applying the system of arbitration to the disputed matters aris- ing among the citizens in the body politic. Five Disposers were ap- pointed who had general charge of the appointment of arbitrators and a general supervision of the proceedings. The rules, however, pro- vided for an appeal in certain eases from the decision of the Disposers to the "generall towne meeting", where the aggrieved party "may have a tryall". At this period, as we might expeet, the supreme legis- lative, executive and judicial functions were embraced within the powers of the general town meeting. The people ordained, judged and executed.

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State of Rhode Island and Providence Plantations at the end of the century : a history, Volume 3, Part 9

Author: Field, Edward, 1858-1928 Publication date: 1902 Publisher: Boston : Mason Pub. Co. Number of Pages: 728

Author: Field, Edward, 1858-1928
Publication date: 1902
Publisher: Boston : Mason Pub. Co.
Number of Pages: 728