USA > Rhode Island > The Dorr war; or, The constitutional struggle in Rhode Island > Part 2
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Failing to obtain assistance from either the executive or the legislative departments of the national government, as a last resort one of the rival parties appealed to the Supreme Court. Here an insurmountable obstacle was found in the time-honored conservatism of the highest tribunal in the land. A decision was rendered in the case of Luther vs. Borden, which determined the exact status of the Supreme Court on constitutional questions, but did not settle the Rhode Island controversy.
Besides raising serious questions as to its internal relations with the three departments of the national government, the struggle in Rhode Island is interesting because of its connection with other States. Public mass meetings were held in many of the large cities of the country, which inflamed the passions of the hostile
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THE DORR WAR.
parties in Rhode Island. However unfortunate such action may have been, it was not illegal, perhaps not improper. But all up- holders of the internal autonomy of the State must be strongly opposed to the official position taken by some of the State legis- latures in making appeals to Congress. The refusal of certain governors to honor the requisition of the governor of Rhode Is- land to hold in arrest the fugitive leader of the defeated party adds another complication to the situation.
Three other issues, judicial as well as constitutional, grew out of the Dorr Rebellion, and present matters of interest to all stu- dents of criminal as well as constitutional law. The first arose when the governor, under a vote of the General Assembly, de- clared martial law throughout the State-taking a step far beyond any which the people of any State had ever witnessed. No study of martial law is complete without a careful review of the decision of the Supreme Court of the State of Rhode Island and the indi- vidual opinion of Justice Woodbury of the Federal Supreme Court. The second legal issue came after the war was ended, the new constitution adopted, and matters in the State had quieted down. The State government arrested the leader of the insurrection and brought him to trial for treason. Prosecution and defense were in practical accord as to questions of fact; the question at issue was the legality of a revolution. The defence also took the unusual position that there could be no such thing as treason against a State, but only against the United States. The third political issue arose several years after the conviction of the so - called " traitor," and well illustrates the Anglo - Saxon rivalry between legislature and judiciary. The General Assembly, in 1854, passed a statute declaring the decision of the Supreme Court null and
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void, and ordering that the account of the conviction and sentence be expunged from the records of the State.
There are, then, at least ten distinct issues bound up in the Rhode Island constitutional contest, which may be briefly summed up as follows :
(1) The general right of the people to adopt constitutions ;
(2) The character of the amendatory method adopted in Rhode Island, whether revolutionary or legal ;
(3) The powers of the national executive in cases of State con- troversies ;
(4) The powers of the national legislature in such cases ;
(5) The powers of the national judiciary in such cases ;
(6) The interference of States in the affairs of other States ;
(7) The right of governors to decline requisitions for persons charged with crime ;
(8) The declaration of martial law ;
(9) The possibility of treason against a State ;
(10) The power of a legislature to annul the acts of the judi- ciary.
In this monograph it is intended to present a complete narra- tive of the short civil war of May and June, 1842, with its causes and results; and further to state and comment upon the important issues which were brought into prominence during the movements for a constitution and for universal suffrage which have been more or less before the people of Rhode Island since 1776, and some · of which have continued to agitate the State even to the present decade.
CHAPTER II.
THE RHODE ISLAND CHARTER.
T HE written instrument which the Rhode Island suffragists were anxious to replace by a new constitution was the charter granted by Charles II in 1663, under which the people of Rhode Island had lived and prospered for more than a century and three-quarters. Undemocratic as the government of the State under the charter may seem in the light of the nine- teenth century, yet its practice was unusually liberal for the seven- teenth century ; it simply remained stationary while popular ideas steadily progressed. For nearly two hundred years the charter was considered the fundamental law by all the inhabitants, and under it the General Assembly met, executive and judicial officers were chosen, and statutes were enacted and enforced. No one questioned its authority or constitutional supremacy until, in 1841, some of the suffrage agitators declared that the State had no con- stitution, much less a written constitution, and that the government was in the hands of an usurping "landocracy." An analysis of this charter and a study of the constitutional development of the colony and State under it form the most appropriate starting point in the discussion of the Rhode Island controversy.
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THE RHODE ISLAND CHARTER.
If the Charter of 1663 can properly be called the Constitution of the State, it must be shown to conform to the requisites of a modern constitution of a republic. First, the document must be the fundamental law ; all other laws, statutes, ordinances or acts must be subordinate to it, and legislative enactments must be treated as null and void if inconsistent with any of its provisions. Secondly, this fundamental law should contain provisions for the machinery of the government and also for the performance of legislative, executive, and judicial functions. Third, such a docu- ment, in order to be valid, must have been at some time adopted by the people of the State or by their properly- chosen representa- tives. Fourth, the authority of the document must, formally or informally, be continuously acknowledged by immigrants and later generations ; for, though once adopted by the State, a constitution which has lost its authority, and is no longer accepted as binding by the citizens, may be considered to have lapsed, even if it has not been formally superseded by another. Were these conditions fulfilled by the Rhode Island charter as it was operated in 1841 ?
The first settlement within the colony was made at Providence, in 1636, by a wanderer fleeing from the jurisdiction of Massachu- setts Bay. Two years later a home was provided at Portsmouth, on the Island of Rhode Island, for another fugitive from Massa- chusetts. The next year a third settlement was made, at Newport, by seceders from Portsmouth. In each of these towns the demo- cratic spirit was marked, and in each local pride engendered a strong feeling of jealousy towards the other towns. In 1640 the two towns on the Island entered into a federation-each, however, retaining nearly all of its former independence.(1) Three years later the three towns obtained from a committee of Parliament a patent, entitled an " Incorporation of Providence Plantations in the Narra-
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THIE DORR WAR.
gansett Bay in New England."(2) The rivalry was strong enough to delay the acceptance of this patent and the formation of a govern- ment under it, so that not till 16.47 was sufficient harmony obtained to enable the first general assembly of the colony to be held at Portsmouth. A fourth town, Warwick, was then admitted to the group, and a legally constituted government was inaugurated. Jeal- ousy, however, soon broke out again, and in 1651 a separation took place between the northern or mainland colonies on the one hand and the southern or island colonies on the other.(8) Providence and Warwick continued the government under the patent of 1643, while Portsmouth and Newport formed a confederation under a new patent obtained by Coddington. Three years later this latter
patent was waived, and a reunion took place.(+) This movement
was entirely voluntary, and the people of each of the four towns deliberately chose to be governed under the patent of 1643. This federal government was, however, almost a nullity in practice, as the towns continued to exercise nearly all the powers which they possessed previous to the formation of the confederacy.
Thus matters stood when the Restoration of 1660 took place. Though Rhode Island had, in some respects, less to fear from the accession of King Charles than the adjoining colonies, still pru- dence suggested to the little colony to win the friendship of the new king if possible. Much of the king's hostility to the northern colonies would doubtless be directed against the New England Confederacy, from which Rhode Island had been ungratefully ex- cluded. Yet the patent of 1643 had been obtained from the par- liamentary government which had made war upon the king's father, and therefore would hardly be considered legal by him or his min- isters. Again, the hostile attention of the churchmen around King Charles would be quickly attracted to the religious liberty prevailing
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THE RHODE ISLAND CHARTER. -
in the colony. For these reasons, the necessity was very evident to the Rhode Island leaders of obtaining the goodwill of the king at the outset, and seeking from him a new charter as liberal as could be obtained.
Accordingly, John Clarke, the agent of the colony, was com- missioned to present their allegiance to the crown and to take all possible steps to secure a ratification of their territorial limits in the form of a charter. Mr. Clarke met with almost wonderful success in his undertaking-a success less easy to explain than that of Governor Winthrop of Connecticut a year earlier. The charter, evidently patterned after that of Connecticut so recently issued, was dated July 8, 1663, and was immediately sent to the colony. The first portion, or preamble (not in the Connecticut charter), referred to the religious position of the settlements, and, both in thought and wording, was noticeably like a letter sent by the agent to the king. This resemblance, and the fact that the Rhode Island Court of Commissioners planned to send definite instructions to the agent,(a) have led some writers to state that a draft, which formed the basis of the charter, was drawn up in Rhode Island and sent over to Clarke.(5) This statement seems very doubtful, especially as the charter proper differs so slightly from that of Connecticut, granted fifteen months earlier.
The anxiously awaited charter reached the colony in November, 1663, and caused great rejoicing in each of the four settlements.
(a) The General Assembly, May 21, 1661, appointed a committee of four "for the drawinge up of somethinge to consider with respecte of sending a man for England." ( Rhode Island Colonial Records, 1, 441.) In accordance with the resolutions prepared by this committee, the Assembly resolved that selectmen from each town should "draw up our addresses unto his majestie, in all humble manner, by way of petition, in terms intreating of our dutifull prostration at his royall feett of ourselves and services, as it becometh the humble subjecks of so gracious a prince ; as also pro- cure the Generall Recorder's hand unto the sayd addresses in the name and behalfe of the colony." (Idem, 1, 445.)
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The colony commissioners were summoned to meet at Newport and the colonists also were requested to be present in large num- bers. A record of the proceedings of this assembly reads as fol- lows :
" At a very great meeting and Assembly of the Freemen of the Colony of Providence Plantations, at Newport, on Rhode Island, in New England, November, 24, 1663,-
" The above said Assembly being legally called, and orderly met for the solemn reception of his Majestyes Gracious Letters patent unto them sent, and having in order thereto chosen the President Benedict Arnold, Moderator of the Assembly,-
" It was ordered and voted nemine contradicente,
" Voted 1. That Mr. John Clarke, the colony Agent's letter to the President, Assistants and Freemen of the colony be opened and read, which accordingly was done with good delivery and attention.
" Voted 2. That the box in which the King's gracious Letters were enclosed be opened, and the Letters, with the Broad Seale thereto affixed, be taken forth and Read by Captayne George Bax- ter, in the Audience and view of all the people; which was accord- ingly done and the said Letters, with his Majestyes Royal Stampe and the Broad Seale with much beseeming gravity held up on high and presented to the perfect view of the people, and so returned into the Box and locked up by the Governor in order to the safe keeping it.
" Voted 3. That the most humble Thanks of this colony, unto our gracious Sovereign Lord, King Charles the Second of England, etc. for the high and Inestimable, yea incomparable grace and favor unto the colony in giving these his gracious Letters patents unto us ; thankes may be presented and returned by the Governor and Deputy-Governor in the behalf of the whole colony.
" Voted 4. That for present and until the colony can otherwise declare, than by words their obligations unto the most honorable Earl of Clarendon, Lord High Chancellor of England, for his Ex-
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THE RHODE ISLAND CHARTER.
ceeding great care and love unto this Colony, as by our Agent above mentioned hath always been acknowledged in his letters. The Governor and Deputy - Governor are desired to return unto his Lordship the humble thanks of the whole colony." (b)
After the establishment of the government under this charter, which had thus been formally accepted-or, one might almost say, adopted-by the colonists, no constitutional or revolutionary change took place for twenty-five years. Then, for a short time, during the Andros regime in New England, Rhode Island was deprived of the charter; but, after its restoration, affairs in the colony went on exactly as before, and political conditions remained unchanged until the breaking out of the Revolution of 1775. The charters of Connecticut and Rhode Island were already so liberal and dem- ocratic that little political change was necessary. The only step taken to change His Majesty's colony of Rhode Island and Provi- dence Plantations into a free and independent State was that of formally renouncing allegiance to Great Britain.(0) By the same act direction was given to erase the name and titles of the king from all commissions, writs, processes, or other instruments, from all oaths, and from the names of all courts, etc. This act, declar- ing independence, was passed by the General Assembly, May 4, 1776, two months before the Declaration by the United Colonies at Philadelphia. It made no change in the government of the State and did not violate the wording of the charter, however much
(b) This account is printed in the Minority Report of the Select Committee of the United States House of Representatives, to which the " Memorial of the Democratic Members of the Rhode Island General Assembly" was referred. This report is commonly called "Causin's Report." House Reports, 28 Cong., I Sess., III, No. 581, pp. 50-52. The Majority Report, or " Burke's Report," Hlouse Reports, 28 Cong., I Sess., 111, No. 546, has been separately published, and copies of it, though rare. are still obtainable. These two reports will be referred to as Burke's Report and Cousin's Report, respectively. See, also, Arnold, Rhode Island, I, 284; Rhode Island Colonial Records, I, 509.
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THE DORR WAR.
it may have been in opposition to its spirit. The charter was not modified in any way by the ratification of the Declaration of Inde- pendence by the State of Rhode Island, July 19, 1776, when the General Assembly solemnly promised to support the General Con- gress with their lives and fortunes.") Here, as well as in the act of the preceding May, the action was taken by the legislature and not submitted to the people for adoption; nor was any other con- stitution adopted by popular vote before 1842.
In February, 1778, the General Assembly sent instructions to the three " Delegates from Rhode Island in Congress" recom- mending "amendments and alterations " in the proposed Articles of Confederation, which they deemed of very great importance; and yet they instructed the delegates, even in case of the rejection of the amendments, "not to decline acceding, on behalf of this State, to the Articles." (8) The people of the State had, directly, no part in this ratification of the final national Constitution; and the Assembly which preferred the act owed its existence to the King Charles charter. The adoption of the Articles of Confederation by the thirteen States had no permanent effect upon the charter of Rhode Island, for they were soon superseded by the Constitution of 1787. As is well known, Rhode Island ratified this Constitution in due form, May 29, 1790, after a protracted struggle of more than two years.
From this brief narrative of the external constitutional changes in the colony and the State, it is readily seen that the old charter had never been abolished or abandoned. Government continued under it, officers took oath to support it, and nowhere did the people show any signs of questioning its authority or legality. Neither the act renouncing allegiance, nor the approval of the Declaration of Independence, nor the acceptance of the Articles 1
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THE RHODE ISLAND CHARTER.
of Confederation, nor the ratification of the Constitution of the United States, can be said to have repealed or seriously altered the charter as a fundamental law. The practical effects of the ratification of the Constitution of the United States upon the Rhode Island Charter of 1663 must have been exactly identical with its effects upon the Massachusetts Constitution of 1780- namely, to modify but not to abolish. The proposition is clear, then, that up to June, 1790, the old charter remained in force ; and it is also true that no further constitutional change took place previous to the year 1842. Unless the colony had changed the charter - directly or indirectly- by some ordinary statute, which would not attract public attention, and which might perhaps be styled an amendment to the charter, then the King Charles char- ter must be regarded as a written constitution in 1841.
The Charter of 1663 (Appendix A) was granted to the ex- isting "Colony of Providence Plantations, in the Narraganset Bay, in New England," and re-established it as a "body corporate and politic " under the title of "The Governor and Company of the English Colony of Rhode Island and Providence Plantations, in New England, in America." It provided that the government of the colony should be in the hands of a governor, a deputy-gover- nor, ten assistants, and a General Assembly consisting of freemen chosen from the different towns, together with the above officers. To this Assembly was given authority to establish such other offices and choose thereto such officers as might seem neces- sary, together with entire legislative power and the constitution of courts of jurisdiction. The "sovereign power" of the General As- sembly - its practical control over all the branches of the govern- ment -was not merely a possibility, but was to a marked degree a reality. There was under the charter no such separation of the
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three departments of government as is common in our State con- stitutions ; and the General Assembly exercised, throughout its en- tire existence under the charter, an almost omnipotent sway. The governor had absolutely no official authority except as a member of the Assembly, and acted as its executive agent, merely carrying out its orders. The judiciary was practically under the control of the legislature by virtue of its annual appointment by the Assembly.
The two most noticeable features of the charter related to the suffrage qualifications and to the apportionment of the representa- tion from the different towns in the Assembly. These are impor- tant enough to warrant exact quotations of the words of the charter. " They [the General Assembly] shall have, and have hereby given and granted unto them, full power and authority, from time to time, and at all times hereafter, . .. to choose, nominate and appoint, such and so many other persons as they shall think fit, and shall be willing to accept the same, to be free of the said Company and body politic, and them into the same to admit." " Forever, here- after, twice in every year, that is to say, on every first Wednesday in the month of May, and on every last Wednesday in October, or oftener, in case it shall be requisite, the Assistants and such of the freemen of the said Company, not exceeding six persons for Newport, four persons for each of the respective towns of Provi- dence, Portsmouth, and Warwick, and two persons for each other place, town or city, who shall be, from time to time, thereunto elected or deputed by the major part of the freemen of the re- spective towns or places for which they shall be so elected or deputed, shall have a general meeting or assembly, then and there to consult, advise and determine, in and about the affairs of the said Company and Plantations." These two sections furnished the basis for nearly all the attacks upon the charter during the half-
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THE RHODE ISLAND CHARTER.
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century ending in 1843. Much more attention was paid, on the whole, to the suffrage clause than to the other, though the de- mand for a reapportionment of the representation held a prominent position in all the discussions and, indeed, antedated the demand for the suffrage by many years. These provisions need a careful exposition, as they are the key- notes to the whole controversy.
The apportionment article is simple, and its practical working is easy to understand. By it the members of the General Assem- bly consisted, in 1663, of the Governor, the Deputy-Governor, the ten Assistants, and eighteen Deputies. The latter represented the towns, four each being sent from Portsmouth, Warwick, and Provi- dence, and six from Newport, while the other officers were elected at large, thereby representing the whole .colony. It may be said with perfect truth that this apportionment was just and fair to each town in 1663. Newport was larger than the others, which were of nearly equal population and importance. The charter, it will be noticed, very properly assigns two Deputies each to any new towns that might be formed, anticipating that these would be weaker and smaller than the older settlements. This assignment of Deputies was a permanent apportionment, however, as no arrangement was made for a later equalization of the representation. It did not occur to Englishmen of the seventeenth century that their own borough representation was defective, and that membership in Par- liament should be allotted to the boroughs more in accordance with their importance; much less would it be expected that they would make any provision for such a possible future need in the colony of Rhode Island. The number of Deputies was increased to twenty in 1669 by the formation of the town of Westerly, and before 1700 to twenty - eight by the addition of four other towns. The nine towns at the beginning of the eighteenth century had
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THE DORR WAR.
become thirty at its close - furnishing seventy Deputies to the General Assembly. The formation of the town of Burrillville, in 1806, increased the numbers to thirty-one and seventy-two, respect- ively, at which point they remained for thirty-seven years. Thus, at the beginning of the agitation for a constitution, in 1840, the General Assembly consisted of the Governor, the Deputy-Governor, and the ten Assistants, or Senators, chosen by the freemen at large; and the seventy-two Deputies, or Representatives, chosen, two each from twenty-seven towns, four each from Providence, Portsmouth, and Warwick, and six from Newport. Had Newport remained the largest town in the State, had the other three original towns re- tained comparatively equal populations, and had none of the new towns become more important, the justice of the representation might never have been questioned.
Turning to the other important provision of the charter, we find that, contrary to the belief which prevailed throughout the country in 1842, and is generally believed to-day, the Charter of 1663, granted by King Charles the Second, did not specify the suffrage qualifications in Rhode Island. Just as the Constitution of the United States does not name the successor to the presi- dency, in case of the inability of both President and Vice-Presi- dent to act, but leaves it to Congress to make rules with regard to the succession, so the Rhode Island charter placed it in the hands of the General Assembly of the colony to admit as freemen . whomsoever it pleased. There was nothing in this word "freemen" that could even indirectly cast a slur upon the non-freemen. By freemen was meant simply the members of the Company, sharing its rights and privileges as well as its duties and obligations. The non-freemen were merely non-members, and held a position in the colony on the whole similar to that of unnaturalized foreigners in
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