USA > Rhode Island > The Dorr war; or, The constitutional struggle in Rhode Island > Part 18
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689. 22 Burke's Report, 694 : Letter of Colonel Bankhead to the Adjutant-General of the United States. 23 Burke's Report, 688. 24 Burke's Report, 695. 25 Burke's Report, 697. 26 Boston Saturday Evening Gasette, June 25, 1842. 27 Providence Journal, June 27, 1842. Boston Saturday Evening Gacette. June 25, 1842. 29 Providence Express, June 27, 1842. 30 Providence Journal, June 27, 1842. 31 Burke's Report, 760 : Address of Dorr, August, 1843. 32 Burke's Report, 761 : Address of Dorr, August. 1843. 33 Providence Journal, June 29, 1842.
34 Burke's Report, 760: Address of Dorr, August, 1843. 35 Burke's Report, 307: Deposition of Walter S Burges. 36 Burke's Report, 309 : Deposition of Samuel Low. 37 Providence Jour-
nal, June 29, 1842. BS Burke's Report, 758 : Address of Dorr, August, 1843. 39 Turner, Trial of Dorr. 25 : Testimony of Dutee J. Pearce 40 P'itman, Trial of Dorr, 53 : Testimony of Dutee J. Pearce. 41 Burke's Report, 759: Address of Dorr, August, 1843. 42 Turner, Trial of Derr, 27 : Testimony of William II. Potter. 43 Burke's Report, 759: Address of Dorr, August, 1843. 44 Providence Express, June 23, 1842 ; Pitman, Trial of Dorr, 70: Testimony of Charles W. Carter, 45 Burke's Report, 757: Address of Dorr, August, 1843. 46 Pitman, Trial of Dorr, 70 : Testimony of Carter. 47 Providence Journal, June 29, 1842. 48 Turner, Trial of Derr, . 28 : Testimony of General William Gibbs McNeill. 49 Burke's Report, 292-307 : Depositions of fifteen persons ; Providence Journal, June 29, 1842 ; Evening Chronicle, July 2, 1842,
CHAPTER XVIII.
MARTIAL LAW.
"T " THAT old fool has taken away more lives in that naked coun- try than I for the murder of my father." So said the king of England, Charles II, of Sir William Berkeley, after the suppression of Bacon's Rebellion, in 1677. One might reasonably hope that the charter authorities would have more political wisdom or a greater humanitarian spirit than the bigoted governor of Vir- ginia colony. Unfortunately the historian can find little to praise among the happenings of the month following the fiasco at Acote's Hill. Martial law ruled the State, and personal passions governed those who enforced the military law. From June 26th until August 8th no resident of Rhode Island might consider himself or his prop- erty safe if he belonged to the supposed majority, the fourteen thousand who were said to have voted for the People's Constitu- tion. Under martial law, not only those present at the attack on the arsenal and those with Dorr at Chepachet were liable to sudden arrest, but all those who had arms in their possession, or who had held aloof from the task of marching against their neighbors at Acote's Hill. Under the Algerine law, not only the men who had attempted to "exercise any of the legislative, executive or minis-
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THE DORR WAR.
terial functions " of any office in the State, but also all those who had in any manner signified "that they accepted any executive, legislative, judicial or ministerial office," as well as the moderators, wardens, and clerks of all meeting-, to elect such officers, other than those held "in the manner, for the purposes, at the times, and by the freemen, by law prescribed," were liable to fine and imprisonment.
The "war," however, was over. The charter government knew positively that it no longer had any danger to fear. Governor Dorr had not only fled again from the State and had ordered his men to return to their homes, but he had also publicly announced that he was convinced that the people were no longer with him. There existed no possibility of further attempts to obtain control of the government by force. Dorr's followers at Acote's Hill were too incensed against him to follow his lead again, even if he were foolish enough to inaugurate another movement. Harsh action by . the charter government, after June 28, 1842, could not be justified on the ground of political danger. Nevertheless, as a legal justifi- cation for all it did, the charter government referred to the act declaring martial law, which had been proclaimed by the Governor on Sunday, in the following proclamation :
" By his excellency Samuel Ward King, governor, captain -gen- eral, and commander-in-chief of the State of Rhode Island and Providence Plantations.
"A PROCLAMATION.
" Whereas the General Assembly of the said State of Rhode Island and Providence Plantations did, on the 25th day of June, A. D. 1842, pass the act following, to wit :
MARTIAL LAW.
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State of Rhode-Island and Provic dence Plantations.
In General Assembler, Jemme Ses- sion, 1842.
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An Act establishing Martial Law in this State.
Beit enacted by the General Assembly asfollows: Sec. I. The State of Rhode Island and Pro- vidence Plantations, is hereby placed under Mar- tial Law ; and the same is declared to be in full force, until otherwise ordered by the General Assembly. or suspended by Proclamation of his Excellency the Governor of the State.
True copy - witness,
HENRY BOWEN, Sec'ry.
WALL PLACARD.
(FROM COLLECTION, RHODE ISLAND HISTORICAL SOCIETY.)
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THE DORR WAR.
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"'AN ACT ESTABLISHING MARTIAL LAW IN THIS STATE.
"' Be it enacted by the General Assembly as follows :
"'SECTION I. The State of Rhode Island and Providence Plan- tations is hereby placed under martial law, and the same is declared to be in full force until otherwise ordered by the General Assembly, or suspended by proclamation of his excellency the governor of the State :'
" I do therefore issue this my proclamation, to make known the same unto the good people of this State, and all others, that they may govern themselves accordingly. And I do warn all persons against any intercourse or connexion with the traitor Thomas Wil- son Dorr, or his deluded adherents, now assembled in arms against the laws and authorities of this State, and admonish and command the said Thomas Wilson Dorr and his adherents immediately to throw down their arms and disperse, that peace and order may be restored to our suffering community, and as they will answer to the contrary at their peril. Further, I exhort the good people of this State to aid and support, by example and by arms, the civil and military authorities thereof in pursuing and bringing to con- dign punishment all engaged in said unholy and criminal enterprise against the peace and dignity of the State.
" In testimony whereof, I have caused the seal of said State to be affixed to these presents, and have signed the same with my hand. Given at the city of Providence, on the 26th day of June, A. D. 1842, and of the independence of the United States the sixty -sixth.
"SAMUEL WARD KING.
" By his excellency's command :
" HENRY BOWEN, Secretary." (a)
(a) Burke's Report, 373. It will be noted that martial law was declared, not by the military gov- ernment, but by the civil ; not by the commander-in-chief, not by the Governor of the State, but by its
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MARTIAL LAW.
From the 25th of June until the Sth of August, the act declar- ing martial law remained in force; on that day its operation was suspended by the Governor until the first of September; and on the 30th of August, the Governor indefinitely suspended the act, though it continued on the statutes unrepealed.(") During the forty days that martial law was in full operation, the people of Rhode Island had an unexcelled opportunity to ascertain which was preferable, civil or military rule. Hundreds of men were arrested and held in "durance vile;" hundreds of houses were searched for hidden weapons, or men.
The number of persons arrested was out of all proportion to the necessities of the case. Granting that there were two hundred men present at the attack upon the arsenal, and five hundred, all told, at Acote's Hill, we can count but six hundred in all as in " armed rebellion," for at least one-half of the two hundred were among the five hundred; but the number of arrests recorded by the partisan Journal counted up to more than half this number. (b)
legislature ; not over the section of the State alone in which the civil power was in danger of being unable to cope with the insurgents, but in all sections of the State ; and that, though it might be sus- pended by the Governor, it would even then hang over the people as a threat until repealed by the General Assembly. These facts show plainly that the Governor of Rhode Island practically possessed only ministerial functions ; and that the General Assembly was all powerful, being bound by no " Bill of Rights." It is of interest to note that both the Freemen's and the People's Constitutions contained in their " Declarations of Rights" a section declaring that " The military shall always be held in strict subordination to the civil authority" (see Appendixes B and C) ; while the constitution adopted after the long experience of martial law, and which has remained the organic law for more than fifty years, omitted the word "always," and added a clause, so that the section reads : "The military shall be held in strict subordination to the civil authority. And the law martial shall be used and exercised in such cases only as occasion shall necessarily require." (See Appendix D.)
(b) Providence Journal, July 2, 4, 6, 7, 8, 9, 12, 13, 14, 16, 20, 23, and 30, 1842. The Jour- nal, on the 14th, stated that two-thirds of the prisoners had been discharged. The paper had printed lists, perhaps incomplete, of about one hundred and seventy persons who had been discharged ; there- fore there were left eighty-five still in confinement. The Journal proceeded to state that some were discharged before the examination commenced, and it therefore supposed that "not a quarter of those who had been taken remained in confinement." A simple example in arithmetic : four times eighty-five is three hundred and forty.
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THE DORR WAR.
The men arrested were almost entirely from the northern part of the State. In one group of thirty-three prisoners, twenty-seven were from Providence County, five from the adjoining county of Kent, and one from Boston.(?) Nearly all of the arrests occurred within a week after the march to Acote's Hill, though martial law con- tinued in force more than a month after the last arrest. The ex- amination of the prisoners was begun early in July, by a board of three commissioners, appointed for this special purpose by the military government.(3) The number was later increased to five, (4) consisting then of Elisha Harris, Stephen Branch, Alfred Bosworth, Henry. L. Bowen, and Joseph M. Blake. (c) Some of the prisoners were discharged before the regular examinations began, which lasted about a fortnight. On the second of July, forty-nine were dis- charged, and twenty-eight committed for trial. Three days later, fourteen were discharged and fifteen remanded. The next day, twenty-eight were examined, and all but two discharged. This process continued until July 13th, when one hundred and sixty- nine had been released, leaving about eighty in confinement. Dur- ing the next ten days, at least half of these were also discharged. The rest awaited the meeting of the grand jury.
The charter government is censurable, not only for the exceed- ingly large number of arrests, but for the indiscriminate character of the arrests, the methods of making them, and the treatment of the prisoners by the military, and for the sufferings of their fami- lies, thus suddenly deprived of bread winners. A few illustrations may be given : A Providence blacksmith was arrested, at his home,
(c) One of these commissioners, a Whig, was a member of the State Senate. One, a Democrat, was elected Representative at the August town meeting and afterwards served eight years as Attor- ney-General. Another, a Whig, was a Representative at the time, and, in October, was chosen Speaker of the House. Another, a Democrat, was also a member of the State House of Represent- atives.
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MARTIAL LAW.
on Saturday, July 2d, marched through the streets of the city by a band of twelve men, nine of whom were negroes, and confined in the armory over night; Sunday he was released by the colonel, as no charges were made against him.(5) A farm employee, of Warren, was arrested at the house of his employer, at four o'clock on the morning of the 29th of June, kept in jail seven days, ex- amined by one of the commissioners, and discharged three days later, there being no accusation against him, unless it was that of being employed by a moderator of a people's town - meeting.(6) A minister in the town of Cumberland was eating his dinner, on Thursday, June 30th, when three soldiers burst into the room and searched the house; though they found no concealed weapons, they made the clergyman a prisoner and marched him to a tavern. These soldiers belonged to a company of the State militia, which was re- turning from Woonsocket to Providence with twenty-one prisoners. These were driven the twelve miles to Providence, in front of the militia, with soldiers in each wagon guarding the prisoners with muskets.(7) At another time, more than a hundred prisoners were marched from Chepachet to Providence, tied together with large bed-cords. " The rope was passed in a clove hitch around each man's arm, passing behind his back, and fastening him close up to his neighbor; there being eight thus tied together in each platoon."(8)
Naturally, the jail and prison accommodations in Rhode Island were found too small on this occasion. It causes no surprise to find that sixteen persons were confined for three days in one cell, twelve feet by nine.(7) In another cell, seven by ten, fourteen men were confined. (s) A third, containing eight persons, gave room enough for the men to lie down. (9) The prisons of those days were none too cleanly, nor were the cells provided with too much
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THE DORR WAR.
fresh air during that month of July. It is true, as William H. Smith, the People's Secretary of State, was assured,(10) that prison cells are much alike; but he was discontented with rooms "about nine feet square, with immense blocks of rough-hewn granite for walls, and with many bolts, bars, rivits, and iron doors of sufficient strength to secure the most ferocious ruffian that ever lived."(11)
The period of arrest under martial law finally passed, the civil law again became supreme, and the grand juries met. Indictments were brought in against some of the leaders in the insurrection,
No. 106
COMMISSIONERS' OFFICE.
Providence, Po. J, August 5 1842.
DiApp 10 William 26 Manu or order. Three Dollars, for Three - days "military service" during the recent insurrection in this State, in conformity to the Act of the General Assembly, June session, A. D., 1842.
3- Branche
Commissioner. To STEPHEN CAHOONE, Esq., General Treasurer.
ORDER FOR PAY FOR MILITARY SERVICE.
(COLLECTION OF CHARLES GORTON.)
and trials were at last held. The case of Joseph Gavit, of Charles- town, in the county of Washington, may be taken as a sample of many cases. The grand jury brought in a true bill against Mr. Gavit, because he, "wickedly devising and intending the subversion and overthrow of the government, being moved and seduced by the instigation of the devil, did unlawfully, maliciously, and traitor- ously assume to exercise, and did exercise, the functions of the office of member of the House of Representatives," etc. He was at
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MARTIAL LAW.
once arraigned and pleaded "not guilty." His case was continued until the November term, when it was again continued. After the lapse of more than a year from the third day of May, 1842, the day of the meeting of the foundry legislature, the newly-elected Attor- ney-General decided not to prosecute the case further. (12)
The cases of William H. Smith, (13) of Dutce J. Pearce, (14) of Burrington Anthony,(15) of Benjamin Arnold, Jr., (16) as well as of many others, would provide much interesting matter; but two trials are of such vital importance in the history of the State, and the nation as well, that they must be selected for special consideration. When Luther M. Borden and eight other men broke into the house of Martin Luther, of Warren, early in the morning of the twenty- ninth of June, they little thought that within a few years the whole country would become interested in the great case before the United States Supreme Court, entitled Luther versus Borden. (17)
Martin Luther, a shoemaker, was chosen moderator of the town meeting, held in Warren, April 18th, under the People's Constitu- tion. Of whatever other illegal acts he may have been guilty, serving as moderator and receiving votes contrary to the " Algerine Law" were the only crimes for which he was indicted. (18) How- ever, when martial law was declared, Luther, on the advice of friends, quietly crossed the border to Fall River. (19) While he was away from home, nine men, headed by Luther Borden, armed with an order from Quartermaster John T. Child, broke into Luther's house in order to ,arrest hin. Unable to find the man they were after, they arrested two employees, discourteously treated Luther's mother and other members of the household, and threw the house · and its contents into general confusion. Luther reinained in Massa- chusetts until after the election of April, 1843, and then returned home. Within a few days he was arrested and held in $2,000 bail.
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THE DORR WAR.
He was duly indicted for the crime of acting as moderator, tried, convicted, and sentenced to pay a fine of $500 and costs, and to be confined in jail for six months.
Claiming a residence in Massachusetts, Luther had brought an action for trespass against Borden et al., in the United States Cir- cuit Court, in November, 1842. The plaintiff presented a state- ment of the trespass, which the defendants did not deny, but which they justified under martial law. The plaintiff then presented evi- dence to prove that martial law had been illegally declared, as the charter government had expired on May 3d, when the People's Constitution went into effect; and he asked the court to instruct the jury that the People's Constitution was in full force in June, 1842, and that "a majority of the free white male citizens of Rhode Island, of twenty-one years and upwards, had a right to reassume the powers of government and establish a written constitution; and that, having so exercised such right, the pre-existing charter gov- ernment became null and void." Judge Story, "pro forma, upon the understanding of the parties, and to carry up the rulings and excep- tions of the said court to the Supreme Court of the United States, refused to give the said instruction, and ruled that the government and laws under which " the defendants acted justified their action. Accordingly the jury found "the defendants not guilty in manner and form as the plaintiff had declared against them."
The famous case of Luther vs. Borden came up before the Supreme Court of the United States at the 1848 term. The coun- sel for the plaintiff were Benjamin F. Hallett, of Boston, and ex- Attorney-General Nathan Clifford, of Maine; the attorneys for the defense were John Whipple, of Rhode Island, and Daniel Webster, of Massachusetts. The case was argued before six members of the bench, Justices Catron, Daniel, and Mackinley being absent. The
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MARTIAL LAW.
questions at issue easily resolved themselves into the one point, namely, the determination of the legal government in Rhode Island in June, 1842.
Mr. Hallett presented three questions for the court to answer: " Had the people of Rhode Island, in the month of December, 1841, without the sanction of the Legislature, a right to adopt a State constitution for themselves, that constitution establishing a government republican in form, within the meaning of the Consti- tution of the United States? Was the evidence of the adoption by the people of Rhode Island of such a constitution, offered in the court below by the plaintiff in this cause, competent to prove the fact of the adoption of such constitution? Upon the issuing of the proclamation of the convention, by which it had been de- clared duly adopted, namely on the thirteenth day of January, 1842, and the acts under it, did not that constitution become the supreme law of the State of Rhode Island?"
Supposing these questions answered in the affirmative, then the charter government was, ipso facto, dissolved by the adoption of the People's Constitution and by the organization and proceedings of the new government under the same. Consequently the act of March, 1842, "in relation to offences against the sovereign power of the State," and the act "declaring martial law" passed in June, were both void. The act of June, being void, afforded no justifi- cation for the acts complained of in the plaintiff's declaration, and those acts, by common law, amount to trespass.
The arguments presented by Mr. Hallett, in support of these positions, have been frequently referred to, earlier in this work. The speech lasted three days, and covered such a variety of topics that even the official Supreme Court Reporter declared himself "much at a loss how to give even a skeleton of the argument."
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THE DORR WAR.
Mr. Hallett answered the questions as to "What is a State?" " Who are the people?" and " Where resides the ultimate power of sovereignty ?" He upheld the right of the people to establish governments. He declared that in the United States no definite or uniform mode had ever been established for initiating or chang- ing a form of State government; that State legislatures had no power or authority over the subject and could interfere no further than to recommend; that the great body of people may change their form of government at any time, in any peaceful way, and by any mode that they for themselves determine to be expedient ; that even when a subsisting government points out a particular mode of change, the people are not bound to follow that mode; and that where no constitution exists, and no fundamental law prescribes a mode of amendment, they must adopt the mode for themselves; and that the mode they select, when adopted, ratified, or acquiesced in by a majority of the people, is binding upon all. Mr. Hallett also answered the question as to when a constitution takes effect, discussed in full the difference between a change of government and a revolution, and affirmed that a revolution to change the form of a State government was impossible.
Mr. Whipple declared the question to be decided to be " whether . a portion of the voters of a State, either the majority or the minor- ity, whenever they chose, assembling in mass meeting, without any law, or by voting where there is no opportunity of challenging voters, may overthrow the constitution and set up a new one." Mr. Webster devoted his attention principally to an examination of one question : whether the Supreme Court could take judicial cognizance of the questions presented in the record. Mr. Clifford spoke solely on the issue whether a State had a right to declare martial law or not.
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MARTIAL LAW.
The next year Chief Justice Taney read the opinion of the Court. On the new and grave issue presented, the existence and authority of the government under which the defendant acted was called into question. The Court was asked to review the action of the Circuit Court in instructing the jury that the charter govern- ment and laws were in full force. The Chief Justice held that " Judicial power presupposes an established government, capable of enacting laws and enforcing their execution and of appointing judges to expound and administer them," and that "the accept- ance of the judicial office is a recognition of the authority of the government from which it is derived." He thus upheld the posi- tion of the Supreme Court of Rhode Island, that it could not traverse judicially the authority of the government under which it acted. The Court then approved the instructions of the Circuit Court, on the ground that the power to determine that a State government has been lawfully established is not one of the powers which the courts of the United States possess.
Thus the Supreme Court of the United States positively re- fused to decide the political question, but held that whatever State government was de facto in power, its decisions and the decisions of its courts were authoritative in the courts of the United States. Had the People's Constitution prevailed; had the government or- ganized under it become established; had the parties opposed to it risen in rebellion; had martial law been proclaimed by it; and had plaintiff and defendant in this cause occupied each other's places-Chief Justice Taney must have decided in the same way and thrown out the case as not within the authority of the Court. The judicial branch of the national government thus left the case to Rhode Island itself, just as the legislative department had prac-
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THE DORR WAR.
tically done, and as the executive power had, fortunately, been compelled to do by the adverse fortune of the People's Governor.
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