USA > Rhode Island > The Dorr war; or, The constitutional struggle in Rhode Island > Part 19
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A point argued strongly by Attorney-General Clifford against the right of the State government to declare martial law received small consideration in Taney's opinion. The brief space devoted to the question contained little else than the decision that a State may unquestionably use its military power to put down an armed insurrection which is too strong to be controlled by the civil gov- ernment. Mr. Justice Woodbury, of New Hampshire, considered that this matter deserved a fuller treatment than the Chief Justice had given it, and, therefore, filed a strong dissenting opinion. He agreed with the Court in the decision of the political question, but could not justify to himself the ruling that martial law in Rhode Island, at the time and under the existing circumstances, was justifiable. The opinion of Mr. Justice Woodbury in the case of Luther vs. Borden is so well known and has become so valuable an authority in all matters relating to the law martial, that but a brief mention is needed here. After producing evidence to show that the Rhode Island government did not practically differ from that of other States in its powers over martial law, the judge affirmed that it was bold doctrine to abolish all constitutional restrictions even in time of war; but that it was much bolder to remove them in time of peace. He declared that, at the farthest, martial law could only be declared in that part of the State in which there was an insurrection and not over the whole State.(d) In his opinion, the act of the legislature was unjustifiable from all points of view.
(d) This would exempt the town of Warren.
AUTHORITIES .- 1 Burke's Report, 472 ; Providence Journal, August 9 and 31, 1842 ; Evening Chronicle, August 9, 1842 ; Republican Herald, August 10, 1842 ; National Intelligencer, August 13, 1842. 2 Providence Journal, July 2, 1842. 3 Providence Journal, July 4, 1842. 4 Providence
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MARTIAL LAW.
Journal, July 12, 18.42. 5 Burke's Report, 318 : Deposition of Nathaniel Knight. 6 Burke's Report, 324 : Deposition of Stafford Healy. 7 Burke's Report, 313: Deposition of Leonard Wake- field. S Burke's Report, 316 : Deposition of Henry Lord. 9 Burke's Report, 321 : Deposition of Otis Holmes 10 Providence Journal, June 9, 1842. 11 Providence Express, June 18, 1842. 12 Burke's Report, 792 ; Providence Journal, June 2. July 8, 1842. 13 Burke's Report, 771 ; Providence Journal, June 4, 9, and 15, 1$42. 14 Providence Journal, June 2, 1842, and subse- quently. 15 Burke's Report, 776. 16 Burke's Report, 786. 17 7 Howard, 1; Burke's Report, 357-473. 1S Burke's Report, Soo: Indictment of Martin Luther. 19 Burke's Report, 322: Deposi- tion of Martin Luther.
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THE DORR WAR.
HOPE
BY HIS EXCELLENCY, SAMUEL WARD KING. €
GOVERNOR, CAPTAIN-GENERAL, AND COMMANDER-IN-CHIEF OF THE STATE OF RHODE-ISLAND AND PROVIDENCE PLANTATIONS.
A PROCLAMATION.
WHEREAS on the eighth day of June instant, I issned a Proclama- tion, offering a reward of one thousand dollars for the delivery of the fu- gitive Traitor, THOMAS WILSON DORR, to the proper civil au- thority: and whereas the said Thomas Wilson Dorr having returned to this State and assumed the command of a numerous body of armed men, in open rebellion against the Government thereof, has again fled the sum- mary justice which awaited him ; I do therefore, by virtue of authority in me vested, and by advice of the Council, hereby offer an additional reward of four thousand dollars for the apprehension and delivery of the said Thomas Wilson Dorr to the Sheriff of the County of Newport or Prov- idence, within three months from the date hereof.
L. S.
GIVEN under my hand and the seal of said State, at the City of Providence, this twenty-ninth day of June, in the ye ir of our Lord one thousand eight hundred and forty-two, and of the Indepen dence of the United States of America the sixty-sixth.
SAMUEL WARD KING.
BY HIS EXCELLENCY'S COMMAND:
HENRY BOWEN, Secretary of State.
PROCLAMATION OFFERING REWARD FOR DORR.
(BROWN UNIVERSITY LIBRARY.)
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CHAPTER XIX.
TREASON AGAINST A STATE.
B Y the Algerine Act, Thomas Wilson Dorr and the other executive and legislative members of the people's govern- ment were guilty of treason. By the ordinary " Treason Act" of the State, Dorr, Anthony, and others were guilty of high treason, because of the events of the seventeenth of May. War- rants for the arrest of these " traitors" followed quickly after the session of the foundry legislature, and rewards were offered for their capture. A high price was put upon Dorr's head, and requi- sitions for his return were sent to the Governors of the neighbor- ing States.(1) But the twenty-seventh of June showed Governor Dorr to be the arch -traitor, if there was treason at all, and every effort was put forth to obtain his capture. Though he was " broken down, deserted by the faithless followers of a faithless leader, and apparently without a chance of recovering," yet it was strongly felt that "the peace of the State would not be secure" until he had been placed under arrest. (2)
But neither the thousand-dollar nor the five-thousand - dollar rewards accomplished the desired result. Governor Davis, of Mas- sachusetts, near the end of May, honored the requisition and agreed
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THE DORR WAR.
to return the fugitive, if found within the commonwealth. Governor Seward, of New York, took the same ground.(3) Governor Cleave- land, of Connecticut, refused to honor the requisition. Quoting the clause of the Constitution of the United States, under which the requisition had been made: " A person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime,"(+) he made the claim that this provision of the constitution "was intended to facilitate the ordinary administration of criminal justice in the sev- eral States .by reclaiming fugitives from the justice of one State to another; but it was never designed to affect political rights or attain political objects." (5)
The refuge in Connecticut was, as has been seen, a boon to Dorr in his preparations for the battle of Acote's Hill. But again he fled, and again rewards were offered and requisitions prepared. In August it was positively announced that Governor Dorr was in Westmoreland, New Hampshire,(0) and a requisition was made upon Governor Hubbard, of that State, for the surrender of the fugitive from justice.(7) But the New Hampshire executive was of a like mind with Governor Cleaveland, and declined to observe the explicit provision of the Constitution of the United States.(8) He sent a letter of explanation through the mails, addressed to "His Excel- lency Sam. W. King, acting as Governor of Rhode Island," which was immediately returned unopened. (9) When this letter saw the light, it was found to contain three reasons for the refusal: such a requisition should come from the real Governor; political offences are not referred to in the constitutional provision; and the "treason" of the clause means treason against the United States. (10) In the
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TREASON AGAINST A STATE.
light of later events we can but wonder whether Governor Hub- bard conferred with Governor Dorr before giving this third reason.
More than a year passed before Governor Dorr returned to Rhode Island. During this period a constitutional convention adopted a new constitution, which was ratified by the people. (11) In April, 1843, sixteen thousand five hundred and twenty votes were cast for Governor,(12) and in May the new constitution went into effect. August 10th, 1843, the People's Governor wrote from Boston an open letter, an " Address to the People of Rhode Island." (13) This long paper, from which copious extracts have been already made, reviewed, in Dorr's masterly style, the entire controversy from the proposed constitution of 1824 through the April election of 1843, and threw the failure of the movement upon the suffragists themselves, and announced that he proposed to return to Rhode Island soon after the August elections. (11)
October 31st, 1843, Thomas Wilson Dorr quietly entered the. City Hotel, in Providence, where he was unable to obtain accom- modations. He stepped across the street, to the office of the Republican Herald, where he was immediately arrested by Jabez J. Potter, Deputy Sheriff of Providence county, (15) under an indict- ment for high treason made by the grand jury of Newport county on the twenty-fifth of August, 1842. (a)
Mr. Dorr was lodged in the Providence jail, where he remained until the twenty- ninth of February, 1844, when he was taken be- fore the Supreme Judicial Court, sitting at Newport.(b) He was at
(a) .Providence Journal, August 26, 1842. At the same time, indictments for high treason were returned against Dutee J. Pearce, Joseph Joslin, Daniel Brown, Seth Luther, Nathan N. Carpenter, John Plain, and George Frizzell.
(b) Lawyer Turner prepared and published a pamphlet of 116 pages, entitled "Report of the Trial of Thomas Wilson Dorr for Treason. Front Notes taken at the time." Joseph H. Pitman also wrote an account of the trial, in a pamphlet of 132 pages. Mr. Turner's account also forms a
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THE DORR WAR.
once arraigned, whereupon he denied the jurisdiction of the court : the offense was charged to have been committed in the county of Providence, and the case should therefore be tried there; the pris- oner thereby claiming that the clause of the Algerine Act per- mitting indictment and trial in a different county from the one in which the crime was committed was "against common right, un- constitutional and void." Five days later, Mr. Dorr waived the question of jurisdiction, being desirous of avoiding delay. Without entering here into the legal point raised by this plea as to the jurisdiction, it may be said that Mr. Dorr's prosecution would doubt- less not have found it so easy a matter to obtain a jury in Provi- dence county to convict the People's Governor as they did in Newport county.
Governor Dorr plead not guilty, and the trial was set for April 26th, 1844. The case came before the entire Supreme Court, consisting of Chief Justice Job Durfee and Associate Justices Levi Haile, William R. Staples, and George A. Brayton. (c) The first step in order was the selection of a jury. In all, one hundred and fifteen men were examined before the jury of twelve was obtained.
portion of Burke's Report, pages 865 to 1048. Turner and Pitman's reports of the trial contain no important inconsistencies Turner is especially complete in his report of the arguments of the de- fense ; therefore his account is by far the more valuable and is here the more frequently quoted.
(c) Judge Durfee will be remembered as having given the famous charge to the grand jury at Bristol, in March, 1842. He was first appointed to the bench in 1833, and was made Chief Justice in 1835, which position he held until IS48. Judge laile had been on the bench since 1835, and remained a judge until his death, in 1854. Judge Staples, well known as a local historian, had served since 1835, and continued in service until 1856, being Chief Justice the last two years before he resigned. It will be noted that these three men also formed the Supreme Court under the Peo- ple's Constitution, by the act of the Foundry Legislature, in May, 1842. Judge Brayton had been added to the court on the inauguration of the government under the new constitution, in June, 1843 ; he remained on the bench until his resignation, in 1874, having served the last six years as Chief Justice. Under the charter, the judges were elected annually by the legislature ; under the new constitution they were chosen for life, being removable only by majority of the members of each house or by impeachment.
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TREASON AGAINST A STATE.
The defendant was allowed twenty peremptory challenges, all of which he used; and eighty-three men were set aside because they had formed and expressed an opinion of the guilt or innocence of the prisoner.
Among the questions proposed by the Attorney-General to be asked of the panel, two were objected to by the defendant. The first was "Did you vote for the said Thomas Wilson Dorr for Governor, at the election on the 18th of April, 1842?" The other was " Have you formed the opinion or do you believe that said Dorr was the Governor of this State, or authorized to exercise the duties of Governor, at any time between the 16th day of May, 1842, and the 28th of June, 1842?" Counsel for the defendant claimed that these questions would insure "a partial jury of politi- cal opponents." The court took the matter under deliberation and, being equally divided in their opinion, did not permit the questions to be put. It may be well to add here, however, that the twelve jurymen were to a man Algerines and Whigs, and that but three of the entire panel of 118 belonged to the Democratic party, which at this time was practically a Dorrite party.
Joseph W. Blake, Attorney- General, appeared for the State, assisted by Alfred Bosworth, of Warren. Samuel Y. Atwell, the principal counsel for the defense, was absent on account of illness ; therefore Mr. Dorr conducted his own case, assisted by George Turner, of Newport, and Walter S. Burges, of Providence. The first witness was examined on Tuesday, April 30th, and the last on May 3d; Mr. Turner occupied Friday afternoon, the entire day Saturday, and Monday forenoon in his address to the jury, though some of his time was yielded to the defendant. Mr. Dorr's closing argument, the pleading of the Attorney-General, and the charge to the jury by Chief Justice Durfee completed the day :
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THE DORR WAR.
the jury brought in its verdict at two o'clock, Tuesday morning. The testimony of the witnesses is valuable only in clearing up certain points in the narrative of the "war," and has been freely drawn upon for this purpose. There was no attempt on the part of the defense to deny any of the facts; it merely sought to show justification.
The counsel for the defense proposed five points upon which the prisoner would rest his case. Two of the points related to the Algerine Act. One claimed that indictments must be found in the county in which the crime was committed: the court declined to hear arguments on this point, inasmuch as they had already expressed an adverse opinion in a previous case. The other point was that such indictment must at least be tried in such county : this the court also set aside as having been previously decided.
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A third point made was that the defendant committed no treason, inasmuch as he performed the acts in his capacity as Governor of the State. The court asked for testimony to this fact. Mr. Turner first proposed to prove by authorities that a constitution was adopted and a Governor duly elected, and he offered the votes of the people in proof of the adoption. Mr. Dorr offered to call each of the fourteen thousand voters separately before the court in proof. Chief Justice Durfee refused to permit such testimony to go to the jury: the point had already been decided in a pre- vious case; the court could recognize no other constitution than - that under which it held its existence; numbers were nothing; the legality only of the proceeding must be examined; and, "if the prisoner was governor of the State, the evidence of it is a certifi- cate of record from the proper officer." In this connection the defense asked permission to argue the question before the jury. This was in accordance with the idea in the People's Constitution
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TREASON AGAINST A STATE.
that " in all criminal cases, the jury shall judge both of the law and the facts." (16) The court could hardly do otherwise than refuse such a request, especially as the new constitution, under which the Court existed, expressly provided that the "judges of the Supreme Court shall, in all trials, instruct the jury in the law."(17)
A fourth point insisted upon by Governor Dorr and his coun- sel was evidently the most important one. It was, in substance, the third reason given by Governor Hubbard, of New Hampshire, for not honoring the requisition of Governor King. "In this country," Mr. Turner claimed, "treason is an offense against the United States only and cannot be committed against an individual State." The prisoner stated it thus: " The argument is that treason, which is defined by the Constitution, and punished by the laws, of the United States, excludes all separate State treasons, even if the ex- clusion be not in express terms."
Mr. Turner, in his plea, entered into an elaborate examination of the authorities relating to treason; he quoted from Coke, Hale, Hawkins, Foster, Blackstone, Burlamaqui, Tucker, Patterson, Burgh, Locke, Story, Hamilton, Iredell, Wilson, Jay, Marshall, and Madison, to show that treason was an offense committed against the "jura summa imperii," or the rights of sovereignty, and that, in the United States, sovereignty resided in the people of the United States-not in the people of any individual State. He admitted that each State was, for certain purposes, sovereign within itself ; but he affirmed that, in other matters, the several States had yielded their sovereignty to the United States. Rhode Island could not declare war or contract alliances; she could not send ministers abroad or receive foreign ministers; she could not raise nor main- tain armies; she could not coin money nor regulate the currency ; neither could she, constitutionally, punish as treason any act done
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THE DORR WAR.
toward herself as a State. The Constitution of the United States distinctly defines treason against the United States, and grants to Congress the power to declare the punishment for treason; there- fore, by implication, the States gave up their right to try citizens for treason.
Mr. Turner next discussed the question whether the State con- stitutions contained clauses concerning treason against the indi- vidual State or not. He announced that such a clause was not inserted in any State constitution adopted prior to 1812; and that in 1842 it was to be found in but nine of the fundamental laws of the twenty-six States then forming the Union. When asked if there were no treason-statutes in any of the other States, he an- swered that he did not know. Finally Mr. Turner turned his attention to the provision in the Constitution upon which State Governors have based their demand upon other executives for a return of a fugitive from justice. He claimed that this clause was borrowed from the Articles of Confederation: it was then proper, since the States still retained their sovereignty; and necessary for their security against offenders. "Under the Constitution, treason against the United States, over which the courts of the United States had jurisdiction, might be committed in one State and the person charged might flee into another, as before; but there is no provision in the Constitution for the arrest of the person so escap- ing and his return to the State where the act was committed, and where alone he must be tried, unless it be the clause in question. So that the construction of this clause is not necessarily limited, by terms, to State offences as distinguished from United States offences."
Governor Dorr presented another view of the meaning and raison d'être of this provision. In his view, at the time of the
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adoption of the Constitution of the United States, treason could be committed against the individual States. "Now, as the Consti- tution contemplated no such apparatus of circuits and districts as was afterwards provided by Congress, and as the offense could only be punished in the State where it was committed, the Constitution could not otherwise provide than for the return of the fugitive to that State. Does it involve an inconsistency to suppose that the framers of the Constitution then had in view the punishment, in and by a State, of the offense of treason, which they had estab- lished and which had been so punishable before? When the courts of the United States were afterwards established, a mode was pro- vided, through the warrant of a United States judge, for transfer- ring a person so charged to the State where the offense had been committed." Therefore, Mr. Dorr implies, though not in distinct words, that the word " treason" in this clause under discussion meant "treason against the United States," now punishable by the federal government.
Mr. Bosworth, for the prosecution, very briefly presented the arguments for the State. He admitted the position taken by Mr. Turner as to the nature of treason and sovereignty in the United States. He denied, however, that the whole people of the United States were sovereign in Rhode Island, contending that each State was still sovereign in every matter which had not been distinctly yielded to the United States. Without the power to punish . acts which amount to treason, a State cannot protect itself. " Treason may as well be committed against a State as against the United States; and the power of punishing it has not been surrendered to the United States." Swift, Story, Dane, Tucker, Rawle, and John- son all regard treason against a State as possible. Attorney-Gen- eral Blake was prepared to argue the matter still further, but was
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THE DORR WAR.
informed by Chief Justice Durfee that it was unnecessary to take more time; the Court was unanimous on that point.
The Chief Justice, in giving his charge to the jury, did not permit them to misunderstand the position of the Court. The question whether the crime of treason could be committed against one of the States of the Union was one of mere constitutional law, and one for the Court alone to decide. " As the organ of the court, I say to you, gentlemen, that wherever allegiance is due there treason may be committed. Allegiance is due to a State and treason may be committed against a State of this Union." Chief Justice Durfee called attention to the "fugitive from justice " provision of the Constitution of the United States, and claimed that it recognized the possibility of treason against a State "by an implication too strong to be resisted." The organized sovereign people of Rhode Island, in the opinion of the Court, had, through its legislative body, declared what treason against the State should mean ; "this law is constitutional and binding on all; the sovereign authority of this State is such that treason can be committed against it."
As has been seen, Governor Dorr and his counsel based their arguments primarily on the impossibility that a person should be guilty of treason against two governments at the same time. In the Federal Convention discussion over the treason provision of the proposed constitution brought out similar ideas. Dr. Johnson contended that treason could not be both against the United States and individual States, "being an offence against the sovereignty, which can be but one in the same community." Mr. Madison also feared that to leave the individual State "in possession of a concurrent power might involve double punishment." Gouverneur Morris proposed that the United States be given exclusive power
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to declare what should be treason. On the other hand, Colonel Mason suggested that the United States would have a qualified sovereignty, and the individual States would retain a part of their sovereignty, so that an act might be treason against a particular State which would not be treason against the United States. When Mr. King asserted that no line could be drawn against levying war against the United States and against an individual State, Mr. Sherman answered that resistance against the laws of a particular State might be different from resistance against the laws of the United States; and Mr. Ellsworth added that the Union and the individual States ought each to have power to defend their respect- ive sovereignties. Though Madison and Morris persisted in declar- ing their fear of a double punishment if the provision was left as proposed, the convention voted that the clause should read, " Treason against the United States shall consist only in levying war against them," etc. (18) A candid reading of the discussion can lead only to the conclusion that though some of the members of the con- vention did not believe that a man could be guilty of two treasons at the same time, yet that the convention did not consider that the clause which they discussed, as finally worded, excluded the possibility of treason against a State.
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Mr. Turner's argument that the individual States had, by im- plication at least, yielded their sovereignty in the matter of treason, . just as they had yielded it in other points, meets with another dif- ficulty. Not only does the Constitution of the United States give the power to make treaties to Congress, but in another place it distinctly takes it away from the States: not only does it place the laying of import duties in the hands of the national legislature, but it directly denies to each State the power to levy such duties. On the other hand, in defining treason and authorizing Congress
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