USA > Rhode Island > The Dorr war; or, The constitutional struggle in Rhode Island > Part 11
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no binding force whatever ;. that obedience to it will form no justi- fication 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." (a)
It was at once evident to the suffrage leaders that a counter opinion was necessary, to strengthen the wavering. Accordingly, twelve days later, a week before the voting upon the Freemen's. Constitution, one of the newspapers published the so-called "Nine Lawyers' Opinion,"(b) or " Right of the People to Form a Consti- tution. Statement of Reasons." It added nothing to the regular suffragist arguments; in brief, it held that the sovereign power of a State is the power which prescribes the form of government; in Rhode Island, at the Revolution, it passed to the whole people ; for, if to a part, the owners of land, then it really passed to the soil itself; the sovereign power should be used but rarely; the people should judge time, necessity, and mode; the convention need not be called by the General Assembly; no mode of obtaining a constitution is established in the State; the General Assembly has no power; it can only request; in fine, the two conventions were alike in constitutional authority, one being requested by the people, the other by the General Assembly. The expression so commonly used, "without law," meant merely without the request of the legis- lature, a servant of the people.(c) In conclusion, the nine lawyers
(a) Providence Journal, March 3. 1842. This reply was signed by Job Durfee, Levi Haile, and W. R. Staples, the three Supreme Court Justices.
(b) These nine lawyers were Samuel Y. Atwell, Joseph K. Angell, Thomas F. Carpenter, David Daniels, Thomas W. Dorr, Levi C. Eaton. John P. Knowles, Dutee J. l'earce, and Aaron White, Jr. The " Nine Lawyers' Opinion " has been republished by Sidney S. Rider, in Rhode Island Historical Tracts, XI. 65-92.
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(c) Then followed a long list of quotations prepared by George F. Man. This is evidently the . foundation upon which the majority of the select committee, in Burke's Report, and Mr. Ilallett, in his plea, based their quotations.
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1 said : " We respectfully submit to you, fellow citizens, that the People's Constitution is a 'republican form of government,' as re- quired by the Constitution of the United States, and that the peo- ple of this State, in forming and voting for the same, proceeded without any defect of law, and without violation of any law." This opinion was drawn up by Thomas W. Dorr, and signed by the nine lawyers, March 14, 1842.(1) The opinion does not explicitly, nor perhaps by implication even, hold that the People's Constitu- tion had become the fundamental law of Rhode Island ; neverthe- less it was effective in holding many votes against the Freemen's Constitution.
At the very time that the suffragist lawyers were formulating their ideas in opposition to the opinion of the State Supreme Court, the grand jury was in session at Bristol. Here, March 25, 1842, Chief Justice Durfee addressed the jury in a charge that is worthy of careful study, and is injured by any summary, however full.() He declared allegiance to be the first duty of every person, a duty due to an implied contract-on one side receiving protec- tion from the State; on the other demeaning oneself faithfully and unhesitatingly to support the State. Movements like those of the suffragists can find no justification in law, for they violate alle- giance to the government. The State is a self-subsistent body politic and corporate, designed to continue its existence, by suc- cession and accession, through all time. The corporate people are the sovereign people, and the forms of government but the instruments of its will. The moment that the corporate people ceases to exist as such, everything is resolved into its natural ele- ments, and the State is gone. The State has also to regard its status in the federal system: if, by revolution, the State is over- thrown, and a new State is established, on what legal or constitu-
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tional principles can it hold, or be readmitted to, its place in the Union? If the question of the existence of the new State is pre- sented to the Supreme Court of the United States, then will be asked, not who voted for it, or how many; but what right had anybody to vote for it at all as the supreme law of Rhode Island ? This pretended constitution is without legal authority, and of no more value in, the courts of the Union than so much blank parch- ment. What are the consequences? When corporate Rhode Island ceases to exist, what becomes of her delegation to Congress; of her bill in chancery, claiming through her charter a portion of the ter- ritory now held by Massachusetts; of the public property; the court-houses ; the jails; the public records; the public treasury, bonds and securities; the actions pending in the courts of the State; corporations? but enough- "I dare go no further. And all this for what?" For an extension of suffrage and an equal- ization of representation. " Revolution in Rhode Island means a conflict among the very elements of society. Neighbor against neighbor, friend against friend, brother against brother, father against son, and son against father-and all this for what?" " And as to that instrument called the 'people's constitution,' standing, as it does, alone and without any legal authority to sup- port it, it 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." Thus, even before the defeat of the Freemen's Constitution, the judiciary of the State had fully declared itself.
When the Freemen's Constitution had been defeated, the con- test reverted to one between the old charter and the People's Constitution; and the latter had a new point of vantage. In the adjourned session of the legislature, beginning March 30, 1842, an-
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other attempt was made to bring the General Assembly into line with " the people:" on the second day of the session, Mr. Atwell introduced a bill to resubmit the People's Constitution to the peo- ple of the State,(3) proposing that all those who had been allowed to vote on the adoption of the Freemen's Constitution should vote upon this resubmission. " If adopted," said he, "it would be the law of the land; if rejected, there would be an end to the matter, according to the principles claimed by the suffrage party." (+) Mr. Keech, of Burrillville, offered another bill, providing for the repeal of the existing election law, and the holding of the next election of officers according to the provisions of the People's Constitu- tion,(5) but Mr. Atwell opposed this bill as not being the "best mode of quieting the State." It was lost by a vote of 2 to 52, and then Mr. Atwell's motion was defeated, 3 to 59. (6)
- The General Assembly, however, appointed a committee " to ob- tain all the facts relating to the rejection of the late constitution, and to enquire what legislation is now necessary."(7) Mr. Atwell wished the committee to investigate "what improper means, if any, were used, and by whom, to influence the people in voting for or against the constitution,"(8) but he was promptly ruled out of order. The committee reported that in its judgment the following reasons had influenced the vote against the constitution: first, the false rep- resentation that the government was an aristocracy, while in fact a democracy ; secondly, dissatisfaction with the apportionment in a portion of the State. (9) The report continued with a discussion of the history of the conventions and the constitutions, and stated that the " People's Constitution was considered merely as indicating the wishes of the people for an extension of suffrage. It was expected that the people would have received the constitution in the same spirit in which it was offered. But misrepresentations were used
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to defeat it." The report criticised the motives of the suffragists, and characterized them as " deluded men."
Mr. Atwell criticised the report as ex parte, and entered into a long speech upon the inequality of the representation in the State Senate as proposed by the Freemen's Constitution. (10) Mr. Ran- dolph answered by stating that the constitution was a matter of compromise, by which Providence was granted increased represen- tation in the House and the farmers were given a preponderance in the Senate. The report was accepted without further discussion.
The General Assembly accepted also a law proposed by the committee, declaring elections under the People's Constitution to be criminal, in an act entitled " An Act in Relation to Offenses against the Sovereign Power of the State." (11) After a preamble
declaring that "certain designing persons [had] framed and [were] endeavoring to carry through a plan for the subversion of the gov- ernment, under assumed forms of law, but in plain violation of the first principles of constitutional right," the statute enacted that all meetings for the election of State officers, other than in accordance with the State laws, were illegal and void ; that moderators, wardens, and clerks of such meetings would be deemed guilty of misdemeanor and subject to six months' imprisonment and a fine of from $500 to $1,000 ; that any person accepting any office by virtue of such elec- tions, or allowing his name to be used as a candidate, would be deemed guilty of high crime and subject to a year's imprisonment and $2,000 fine; and that any person assuming a State office be- cause of such election would be deemed guilty of treason and sub- ject to imprisonment for life; trials of such cases were to come before the Supreme Judicial Court, and might be held in any county of the State, irrespective of the county in which the offense was committed.
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Upon this statute there was very little discussion in the House, and it was passed by a vote of 60 to 6.(12) It was immediately dubbed the " Algerine Law," for a reason suggested by one of the suffrage newspapers :. " The Dey of Algiers has had his day; and Rhode Island is the last place in which the arbitrary doctrines of this ex-potentate can be revived with success or impunity."(13) The severity of this act has been strongly criticised, not only by the suffragists of that day, but by more unprejudiced men since. From the standpoint of the law and order party, however, the General Assembly could scarcely do less than protect the people of the State from the illegal proceedings of the suffragists. In Virginia a law had existed for years declaring such actions treason, and prescribing the penalty of death. (11)
In spite of legislature and judiciary, the suffragists continued their preparations for an election under their constitution. The first step had been taken before the publication of the Freemen's Constitution, when, February 16, 1842, "the friends of the Suffrage Constitution " held a convention, and nominated a ticket for their April election consisting of General Thomas F. Carpenter for Gov- ernor, Judge Wager Weeden for Lieutenant-Governor, William H. Smith for Secretary of State, Walter S. Burges for Attorney- Gen- eral, and John Sterne for General Treasurer. (13) Of these men, three were Whigs and two Democrats-the convention thus trying to keep national party issues out of the election. General Carpen- ter declined, on the ground that it would be wiser to head the ticket with a Whig than a Democrat; Mr. Burges also declined. The convention then nominated Judge Weeden for Governor, and au- thorized a committee to fill any vacancies. (d) The three leading
(d) This committee consisted of : Thomas W. Dorr, chairman ; Benjamin Arnold, Jr., Nathaniel Mowry, Dutee J. Pearce, Joseph Gavit, John R. Waterman, and Nathan Bardin.
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men on this committee, and henceforth in the suffrage movement, were Dorr, Pearce, and Waterman.
February 22, it was announced that Judge Weeden had positively declined ;(16) but three days later the committee's revised ticket was announced, with Weeden for Governor, William C. Barker for Lieu- tenant- Governor, Burges for Secretary of State, John P. Knowles for Attorney-General, and Sterne for General Treasurer; (17) again there was a nearly equal division between the parties. This ticket stood in a prominent place in the suffrage organ until about the first of April, when the so-called " Algerine Law" was passed ; it then disappeared, and Chairman Dorr announced that the publica- tion of the ticket for State officers and Senators was suspended in consequence of vacancies, and that it would be republished the next week with the vacancies filled.(18) A few days later, the State com- mittee (the chairman not included) announced that the ticket was not yet complete,(19) and it became known that all the five nominees for general office had resigned. On April II the finally-revised list was published : Thomas W. Dorr for Governor, Amasa Eddy, Jr., for Lieutenant - Governor, William H. Smith for Secretary of State, Joseph Joslin for General Treasurer, and Jonah Titus for Attorney- General.(20) No other ticket or nominations were made.
Under the provisions of the People's Constitution the election for officers was held April 18; and later the " People's House of Representatives " counted the votes through a committee appointed for that purpose. ( ?! ) In every case but one the candidates for gen- eral officer and for Senators were chosen unanimously; the general officers averaged 6,360 votes each -or about 7,500 less than the alleged vote on the constitution itself. The Senators elected re- ceived an average vote of 538, the extremes being 1,315 and 119;
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showing either a poor apportionment, or great variations of interest in the election. (e)
Two days after the " People's Election " occurred the regular charter election. The law and order party renominated four Whigs; for Governor, Samuel Ward King; for Secretary of State, Henry Bowen; for Attorney- General, Albert C. Greene; and for General Treasurer, Stephen Cahoone. Nathaniel Ballou, the candidate for Lieutenant-Governor, the only new one on the ticket, had been Speaker of the House as far back as 1825, and his nomination was evidently a bid for Democratic votes. In opposition to Governor King a ticket was prepared headed by General Carpenter, who had been the original candidate on the " People's ticket." The ground upon which he stood is not very plain : as a Democrat he would claim the party vote, but as an upholder of the People's Constitution he did not show SAMUEL WARD KING. consistency in being a candidate for any office at this " needless" election. General Carpenter received 2,211 votes, and Governor King 4,864, with 5 scattering. (22)
In comparing the votes at these elections, a few points should be remembered. Every person who voted on April IS came under
(e) The twelve Senators elected, with the votes received, were : (1) Eli Brown. 820 ; (2) Hezekiah Willard, 1,315 ; (3) John Paine, 652 ; (4) Abner Haskell, 907; (5) Solomon Smith, S56 ; (6) Benjamin Nichols, 648 ; (7) John Wood, 237; (S) Benjamin Chace, 324 ; (9) John B. Cook, 119; (10) Joseph Spink, 234 ; (II) William James, 135 ; and (12) Christopher Smith, 210.
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the penalties of the " Algerine Law;" although the advocates of this election claimed that a few days later it would infallibly be repealed by the " People's General Assembly." At the charter elec- tion, of course none but freemen were allowed to vote; and large numbers of these legal voters were suffragists who would naturally decline to vote on the ground that, under the circumstances, the charter election was a farce; even the opposition candidate was a suffragist; but the entire freemen opposition vote, including the suffragists, was barely 2,200, while those of the freemen who were opposed to the People's Constitution, and were willing to vote for the re-election of the Whig Governor, turned out at the polls to the number of 4,864. It will be remembered that the committee of the People's Convention computed that there were 9,590 freemen in all, of whom 4,960 voted for the People's Constitution, thus giv- ing it a majority of the freemen of the State. That was only an estimate; and it is certain that 4,864 freemen-also a majority of 9,590-voted for a continuance of the charter government in voting for Governor King, even after the People's Constitution had been nominally adopted, and Thomas W. Dorr had been elected Gov- ernor in accordance with its terms. The people's government was in a minority of freemen, if not of adult male citizens.
The elections over, there was nothing for the suffragists to do but to wait for inauguration day; while the charter government might, if it chose. occupy itself with preparing criminal cases. Something like 36 moderators, 36 clerks, 5 candidates for general offices, 12 senatorial candidates, 86 candidates for the House, and 5 shrievalty candidates had laid themselves liable to arrest for the misdemeanors of holding elections and running for office under an unreal constitution. Now was the time for the government to put down the anticipated revolution. The period before the first of
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May was short, it is true, but sufficiently long to so cripple the suffragists that the new charter government could easily complete the suppression, and the people's government could not organize. This would seem now to have been. the right step for the law and order party, if they were sure of their position. But not an arrest was made, under the " Algerine Law," in the whole month of April, and the various officers-elect of the people's government went about their daily business unmolested.
AUTHORITIES .- 1 Rhode Island Historical Tracts, XI, 65. 2 Burke's Report. 706-717. This address was published by the grand jury, with the permission of Judge Durfee 3 Rhode Island House Journals. Mar. 30, 1842. & Providence Express, Mar 31, 1842 ; New Age. Apr. 2, 1842. 5 Rhode Island House Journals, Mar. 30, 1842 ; Providence Express, Apr. 2, 1842 ; New Age, Apr. 2, 1842. 6 Rhode Island House Journals, Apr. 1, IS.42. 7 Rhode Island House Journals, Mar. 31. 1842 ; Rhode Island Acts and Resolves, March, 1842, pp. 3-4. S Providence Express, Mar. 31. IS42 ; New Age, Apr. 2, 1842. 9 Rhode Island House Journals, Apr. 1, 1842 ; Rhode Island Acts
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and Resolves, March, IS42, p. 3. 10 Providence Express, Apr. 2, 1842 ; New Age, Apr. 2, 1842. 11 Rhode Island House Journals, Apr. 1, 1842 ; Rhode Island Acts and Resolves, March, IS42, pp. 16-18; Burke's Report, 133-135. 12 Rhode Island House Journals, Apr. 2, 1842; Providence Express, Apr. 4, 1842. The six were : Atwell, Burges, Gavitt, Keech, Thurston, and Walling. 13 Providence Express, Apr. 5, IS42. 14 See page S9. . 15 Providence Journal, Feb. 17, IS42 ; New Age, Feb. IS, IS42. 16 Providence Journal, Feb. 22, 1842. 17 New Age, Feb. 25, 1842. 18 New Age, Apr. 2, IS42 ; Providence Express, Apr. I, IS42. 19 New Age, Apr. 9, IS42. 20 Providence Journal, Apr. 11, 1842. 21 Burke's Report, 452-454. 22 Rhode Island Manual,
1896-97, 102.
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CHAPTER XII.
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APPEAL TO THE NATION.
T HE old charter government and both the newly elected governments realized that the chances of a peaceful set- tlement of the controversy were small. Apparently the adherents of the two parties - the upholders and opponents of the People's Constitution -were nearly equal in numbers. The legislature had passed the "Algerine Law," and found itself con- fronted with a stupendous task if it attempted to enforce it. A half- hearted enforcement of the statute would avail nothing : it would be necessary to thoroughly carry out its provisions. The one hundred and eighty persons guilty of a breach of this act were among the most prominent citizens, and behind them stood at least a large minority of the citizens of the State. The sheriffs of the five counties would have found it quite difficult to make arrests without the support of some strong military force.
Neither the punitive statute of the Charter General Assembly nor the opinion of the Supreme Court had deterred the people's party from holding its election, and now the regular executive power did not dare to act against it. Enforcement of the law, in all probability, could be obtained only by the calling out of the State militia ; but, since the citizens of the State were so evenly
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divided, the Charter government felt no certainty that it would find the citizen soldiery ready to come to its aid. Indeed, the suffragists expected that many, perhaps a majority, of the military companies would be found arrayed with them; and the "Constitutional State Committee " went so far as to invite the " Chartered Companies, the Military Companies, and the Volunteer Companies, who are in favor of the People's cause and constitution," to be present as an escort to the newly elected Governor Dorr and the " People's Gen- eral Assembly."(1)
Though the law and order newspapers persistently belittled the exigency, yet the official acts of the government show that the State authorities realized the gravity of the situation : they had private evidence that made them even more doubtful of their ability to cope with the difficulty, and fearful of civil war. As early as February 5, 1842, Samuel Currey testified to a conversation which he had held with Franklin Cooley, who had informed him that a messenger had gone to Boston " to procure 2,000 stand of arms, and that this supply of arms was for the use of those who were about to enforce the people's constitution against the authority, civil military, of the existing government." (2)
Martin Stoddard, president of the mass convention at Newport, May 5, 1841, gave an account of the proceedings of the suffragists, and closed by stating that he believed that " without some inter- ference on the part of the Executive of these United States, the peace and quiet of this State cannot be preserved, and that all the horrors of a civil war will, and must, be suffered by our people."(3) Jacob Frieze, from his intimate acquaintance with the leaders of the suffrage party, testified that they had been "extremely anxious that the legal convention should not form a constitution that would
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be acceptable to the people ; and that, let what would come, they would carry their constitution into effect, and organize and estab- lish a government on it, by force, if necessary." He claimed to be " fully persuaded that a firm resolve pervaded their ranks never to give back from their purpose if they can perceive a probability of its execution by any means in their power."(+) Other testimony was obtained of a similar nature, that the suffragists were arming themselves and that military companies from outside the State had promised aid.(5) The charter government was also furnished with copies of resolutions passed in the town of Cumberland, " That the people's constitution we will maintain at all and every hazard," and "as one man, we will, by every means in our power, oppose the adoption of this spurious constitution, nor abate our efforts until it shall be one of the things that were. . .. We stand ready at a moment's warning, with our lives and honor, to carry into full effect the people's constitution, according to the conditions of the same, unless otherwise ordered by the General Government of this nation." (G)
The General Assembly had scarcely adjourned when the exec- utive authority therefor decided that it was necessary to appeal to the general government. April 4, 1842, Governor King sent two letters to President Tyler, asking for help. The first letter was a formal call for the aid promised in the Federal Constitution : " The State of Rhode Island is threatened with domestic violence. Appre- - hending that the legislature cannot be convened in sufficient season to apply to the Government of the United States for effectual pro- tection in this case, I hereby apply to you, as the Executive of the State of Rhode Island, for the protection which is required by the constitution of the United States."(?) Nothing important had oc-
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curred since the adjournment of the legislature; only a day or two would have been needed to bring the members of the Assembly together; and no domestic violence could have been expected to occur before April 18, the people's election day. The charter government blundered, evidently, in thus depending on a petition from the Governor rather than from the legislature.
In the other letter of the same date, the Governor wrote: "For nearly a year last past, the State of Rhode Island has been agitated by revolutionary movements, and is now threatened with domestic violence. . There is but little doubt but that a proclamation from the President of the United States, and the presence here of a military officer 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 conflict 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."(7)
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