USA > Rhode Island > The Dorr war; or, The constitutional struggle in Rhode Island > Part 20
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THE DORR WAR.
to declare its punishment, it distinctly speaks of treason "against the United States," and nowhere intimates that the power to pun- ish treason against a State did not still belong to such State.
Mr. Turner's point that the original State constitutions did not contain a treason clause, and that but nine of the twenty-six State constitutions did contain such clause, was of but little account. (d) Though it is true that sixteen State constitutions did not contain the clause in 1842 (one of these being the Rhode Island charter), it is also true that most, if not all, of these States, Rhode Island included, did contain a statutory provision defining treason.(e) More- over, it was the consensus of opinion among the constitutional au- thorities that treason was a common-law offense in each State, and therefore no constitutional or statutory enactment was needed. Dr. Wharton upholds Judge Story's charge to the grand jury in Rhode Island, in 1842, in which the proposition was advanced that treason must be an offense against a State unless the object of levying war be manifestly for some matter of a general concern to the United States; and he quoted Judge Tucker to the same effect. (19) Dr. Wharton also declared that " the course of practice adopted at the time of the formation of the Federal Constitution, when the attention of the judiciary was closely called to the bound- aries of national and State sovereignties, and pursued to the pres- ent day, is to recognize levying war against a State as forming a State offense, cognizable in a State court, and punishable by State authority." (20)
(d) Mr. Turner was usually quite correct in his statements of facts, but he was in error here, for he omitted the constitution of Maine from his list.
(e) In ascertaining these facts, all the constitutions of every State have been examined and the stat- utes of ten of the States which, in 1842, did not contain a treason clause in their constitutions.
251
TREASON AGAINST A STATE.
Sergeant, in his Constitutional Law, published in 1822, holds that treason against a State may be committed by an open and armed resistance to the laws of a State or a combination and for- cible attempt to overturn or usurp the government. (21) Rawle's View of the Constitution, published in 1829, took the same ground: "Similar acts committed against the laws or government of a par- ticular State, are punishable according to the laws of that State, but do not amount to treason against the United States." (?)
The lawyers in this case of Rhode Island versus Thomas Wilson Dorr had but few precedents upon which to base their arguments. During the course of the second war with England, an attempt was made to try a citizen of New York for treason against that State. The Supreme Court quashed the indictment on the ground that, in case of war between the United States and a foreign nation, giving aid and comfort to the enemy was treason against the United States and not against the State of which the party was a citizen. At the same time the Court declared that treason might be com- mitted against a State by an open opposition to its laws. (23) As
far as has been ascertained, after careful investigation, this case of Lynch in New York alone preceded the case of Dorr in Rhode Island: the third known case was that of John Brown, in Virginia.
Had President Tyler sent military assistance to Governor King, and had Governor Dorr in his armed resistance to the charter government come into opposition to the federal soldiers, the case would have been different. The crimes alleged, under such cir- cumstances, would have been treason against the United States and not treason against the State of Rhode Island. (2+) President Tyler's conservatism saved Governor Dorr from this issue, but it ought not to have saved him from all accountability for his course. Trial for treason against the State properly followed acts in oppo-
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THE DORR WAR.
. sition to the government of the State. The plea that he com- mitted no treason against the United States should not exempt him from the natural consequences of his movements in Rhode Island. Besides, treason against a State "is recognized as having a substantive and independent existence in that clause of the federal constitution which provides" for the return of the fugitive from the justice of a State, charged with treason against that State. (25) The attempt of Turner and Dorr to explain away the word "trea- son" in that clause as not meaning treason against a State was pettifoggery.
The four points so far discussed were legal questions which the Court promptly ruled out, and which therefore did not go to the jury. A fifth point of defense was that the evidence did not support the charge of treasonable and criminal intent on the part of the defendant. Mr. Turner argued that Governor Dorr pro- ceeded justifiably and from a high sense of duty; that the whole evidence showed that throughout he acted without traitorous intent, believing himself to be in the right. It need hardly be added that this was undoubtedly true. However, in the charge to the jury, the Court removed whatever hope the prisoner might have had, by saying: " It may be that he really believed himself to be the Governor of the State and that he acted throughout under this delusion ; however this may go to extenuate the offense, it does not take from it its legal guilt." Finally the court simplified the whole matter for the jury by stating that if they believed, "by the testimony of two or more witnesses, or by confession in open court," that the prisoner made a military demonstration at Providence against the arsenal, or that he commanded an armed force at Che- pachet with the avowed object of overturning the existing govern- ment, then it was their duty to return a verdict of guilty.
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TREASON AGAINST A STATE.
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Evidently there was but one thing for the jury to do. "The court made everything plain for us," said one of the jurymen after- wards. The jury agreed upon the verdict at once. They retired at eleven on Monday evening, and, "waiting for the crowd to dis- perse," brought in the verdict of guilty at two o'clock, Tuesday morning, May 7th. Eight days later counsel Turner brought in a bill of eighteen exceptions and a motion for a new trial. The exceptions were, some of them, trivial or technical, such as the usual charges of misconduct in obtaining the jury, and of improper admission of evidence, and errors in the rulings of the Court on the legal questions presented: more important was the claim for the admission of testimony to show that the prisoner was legally entitled to do what he did; that treason was an offense against the United States only; that the Algerine Act was unconstitu- tional; and that the jury must consider the question of intent on the part of the prisoner.
June roth the Court met to hear arguments on the motion for a new trial. For three days Mr. Turner argued at length, taking up each exception in order; the Attorney-General briefly replied, and the Court took the matter under advisement. On the four- teenth the Court stated that the motion for a new trial was denied. Mr. Turner then read a motion in arrest of judgment on the ground that the trial was held in Newport county. He argued the point fully; the Attorney-General answered in brief; and Mr. Atwell, present for the first time, made a final plea in behalf of his client. June 24th the Court denied the motion in arrest of judgment, and the next morning the Attorney - General demanded the sentence. The prisoner was permitted to address the Court, when asked why sentence should not be pronounced upon him, and made an able reply, bringing out in brief but telling paragraphs his criticisms
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THE DORR WAR.
of the fairness of the trial. In conclusion he said: "I am bound, in duty to myself, to express to you my deep and solemn convic- tion that I have not received at your hands the fair trial by an impartial jury to which by law and justice I was entitled."
At once Chief Justice Durfee pronounced sentence: "that the said Thomas Wilson Dorr be imprisoned in the State prison at Providence, for the term of his natural life, and there kept at hard labor in separate confinement." Two days later, June 22d, Mr. Dorr was removed to Providence and duly placed in the State prison in that city. (20)
AUTHORITIES. - 1 Providence Journal, May 28 and June 9, 1842 ; Providence Express, May . 28, 1842. 2 Providence Journal, July 2, 1842. 3 Providence Journal, May 28. 1842. 4 Constitution of the United States, Art. IV, Sect. 2, Clause 2. 5 Cleaveland to King, 5; New York Courier and Enquirer, June 2, 1842 ; National Intelligencer, June 11, 1842. 6 Republi- can Herald, August 13, 1842 ; Boston Saturday Gazette, August 13, 1842. 7 Providence Jour-
nal, August 20, 1842. S Providence Journal, August 23, 1842. 9 Providence Journal, August 26, 1842 ; Boston Saturday Evening Gasette, August 27, 1842. 10 Providence Journal, Septem- ber 5, 1842. 11 Rhode Island Manual, 1896-1897. 129. 12 Rhode Island Manual, 1896-1897, 102. 13 Burke's Report, 731. 14 Burke's Report, 764. 15 Providence Journal, November
I, IS43.
16 People's Constitution, Appendix.
17 Constitution of 1842, Appendix. 18 Eliot's
Debates, V, 447. 19 Wharton, Criminal Law, § 2769. 20 Wharton, Criminal Law, $ 2772. 21 Sergeant, Constitutional Law, 371. 22 Rawle, View of the Constitution, 142. 23 11 John- son, 553 ; sce also Kent, 403 note ; Wharton, 2772 ; Sergeant, 371 note ; Rawle. 143 note. 24 Wharton, Criminal Law, § 2771. 25 Wharton, Criminal Law, § 2766. 26 Republican Herald, June 29, 1844.
CHAPTER XX.
THOMAS WILSON DORR.
T' HE natural reaction soon set in. At the time of Governor Dorr's conviction, Governor Fenner had but recently been placed again in the gubernatorial chair. The law and order party was in full power throughout the State, having a firm grasp upon the General Assembly. The summary trial of Governor Dorr, however, was not acceptable even to the law and order faithful, and the appearance of unfairness made it unacceptable to the mass of the people, Sympathy for the martyr Governor grew with re- markable rapidity. The General Assembly even showed signs of weakness; it could not be held strictly to the course laid out for it. Finally, when Governor Dorr's aged parents petitioned the leg- islature for an act of amnesty, the General Assembly, in January, 1845, voted that "the prayer be so far granted that Thomas W. Dorr be liberated from his confinement in the State prison upon his taking the following oath or affirmation :
" 'I do solemnly swear that I will bear true faith and allegiance to the State of Rhode Island and Providence Plantations; and that I will support the constitution and laws of this State and of the United States : So help me God.' "(1)
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THE DORR WAR.
The imprisoned Governor could not bring himself to obtain his liberty by what seemed to him an act of inconsistency. Un- doubtedly he believed that he was the legal Governor of the State he considered that the People's Constitution was still binding, and that the constitution to which he was asked to swear allegiance was null and void. Declining to take the oath, he remained in
JAMES FENNER.
prison. The agitation for his release continued, how- ever. The Democratic party became fully identified with his cause, and the fight at the April election was between the law and order party and the " Liberation- ists." Liberation societies were formed throughout the State; liberation sentiment was stimulated by every means possible. As a re- sult, Governor Fenner was defeated for re-election by the " liberation " candidate, Charles Jackson, by a vote
of 8,010 to 7,800.(2) The rest of the law and order State ticket was elected, though the " liberationists" had a majority in the Gen- . eral Assembly.
June 27, 1845, exactly one year after the prison doors closed upon Governor Dorr, they opened again to permit him to go free. On that same day the General Assembly had passed "an act to pardon certain offences against the sovereign power of this State
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THOMAS WILSON DORK.
and to quiet the minds of the good people thereof." This law provided for the discharge from prison merely of "any person who has been convicted of the crime of treason against the State and is now in prison under the sentence of the law."(3) Governor Dorr quietly retired to the home of friends, broken down in health and spirits, barely more than a wreck of his former self.
The " liberation " is- sue alone elevated Mr. Jackson to the gov- ernorship, and the next year he was defeated for re-election.") After that the terms "Law and Order " and " Lib- eration " went out of : use, and the normal Whig majority regu- larly defeated the Dem- ocratic minority until IS51. In that year the minority became the CHARLES JACKSON, THE "LIBERATION " GOVERNOR. majority, and Philip Allen was chosen Governor, while the other State officers were re- placed by Democrats.(5) Scarcely had the General Assembly organ- ized, in May, 1851, when it passed a resolution restoring Mr. Dorr to his civil and political rights.(6)
Governor Allen's majority, in 1851, was less than nine hundred. The next year he was re-elected by a majority of four hundred in 33
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THE DORR WAR.
a total vote of eighteen thousand: this was the year that Rhode Island gave its electoral vote to a Democratic candidate for Presi- dent, the only time since 1836. The next year Governor Allen polled more than ten thousand votes as against eight thousand for William W. Hoppin, the Whig candidate. The strong Democratic wave, this year also carried the General Assembly, which, in Feb- ruary, 1854, proceeded to take a step that must have appalled even
DORR LIBERATION STOCK.
I HEREBY CERTIFY,
that Pras
contributed Ten Cents to the Dou Liberation Fund, for the purpose of carrying, by West of Error, the Case of The State of Rhode Island against Thomas Wilson Dorr, to the Supreme Court of the United States. T. G. Treadwell
Counsel for sundry Citizens of Rhode Island.
LIBERTY
CounterngRed.
Providence R 1 Oct. 28, 1844
President of the Dort Lib. Soc.
CERTIFICATE DORR LIBERATION STOCK.
(COLLECTION OF CHARLES GORTON.)
Governor Dorr. It passed an act reversing and annulling the judgment of the Supreme Court of Rhode Island rendered against Thomas W. Dorr.(7)
This act was unique: it was an illustration of what Governor Dorr called the "Omnipotence of the Legislature." Criticising certain features in the trial of Thomas W. Dorr, it affirmed that he had been wrongfully convicted, and that these wrongs should be redressed. Since the English forefathers had been in the habit
The Four Traitors.
Who most infamously sold themselves to the Dorrites, for Office and Political Power.
Let us not reward Traitors, but with just indignation abandon them as " Scape- Goats," to their destiny-forever.
LIBERATI
PROX
Charles Jackson. Samuel F. Man. James F. Sinumons. Lemuel II. Arnold. Providence. Cumberland. Johnston. South Kingston.
"O, heaven, that such companions thou'dst unfold; And put in every honest hand a whip To lash the rascals naked through the world "
"APOLOGETIC NOTE. At the present, dark, dismal and degenerate period of our history -- when a man regardless of himself and his God, will sell his birthright for a mess of pottage - when an obscure individual like Polk, is eleeted to the Presidency, and a pompous, self - conceited man like Jackson. to the Gubernatorial chair - and other Dorrites, too contemptible to mention among men, are appointed to fill different offices under the general government - when Foreigners, ignorant, barbarous and uneivilised, as the wild ass of the wilderness, pour in upon us like the plagues of Egypt, scourging and desolating the land - when the murderer, with brazen front and seared conscience, his hands still dropping with human blood, stalks abroad, at noonday, unpunished - when there seems to manifest itself (among a certain, ignorant, low - bred Class of radieals, disorganisers, abolitionists assum- ing to be jurists, conseientiously afraid of the gallows, and vile, illiterate and decayed priests, a nuisance in society,) such a criminal and unhallowed sympathy for felons of every deseription, when we would do something for the public good, and attempt to stay the torrent of moral and political profligacy, which sapping the foundation, seems to threaten the overthrow of our most valuable institutions - when the law is trampled under foot with impunity - and every thing around is anarchy and confusion - to those who are disposed to cavil or criticise, and it is very easy to do so, we would say, that as the Originals could not be induced to sit for their portraits, without large sums of gold or pledges of high political trust, they were necessarily, with much difficulty, sketched from recollection ; it cannot therefore be reasonably supposed, that their features are precisely exact ; but if they had sat to the artist, the expres- sion of their faces, being as variable as their characters, what might seem a good likeness to day, would cease to be so to - morrow ; and this we deem a full and sufficient apology.
* The conduct of these men ; two of them in particular, towards Governor Fenncr, who fearlessly and nobly, sustained the State, through all its recent difficulties, is so treaehierous, base and execrable, and is so well understood by the intelligent part of the eonimunity, that it needs no comment."
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THOMAS WILSON DORR.
of reversing judgments by act of Parliament, and since the charter granted to the General Assembly the right "to alter, revoke, annul, or pardon such fines, mulcts, imprisonments, sentences, judgments, and condemnations as shall be thought fit," and since the new con- stitution continued to the General Assembly the powers heretofore exercised, therefore it decreed that the judgment against Thomas Wilson Dorr be " Hereby repealed, reversed, annulled, and declared to be as if it had never been rendered." The clerk of the Supreme Court for the county of Newport was ordered to "write across the face of the record of said judgment the words, 'Reversed and An- nulled by Order of the General Assembly at their January Session, A. D. 1854.'" This act was passed in the House of Representa- tives by a vote of thirty-nine to eighteen.($)
No act of any legislature could redress the injury which had been done to Governor Dorr. Worn out in mind and body, with- out spirit or energy, grown old before his time, the unhappy man dragged out a miserable existence. To him the opening of the prison doors was no vindication: rather, it was equivalent to say- ing, " You have been punished enough; you may go now." The complimentary vote for United States Senator by the minority of the General Assembly could mean but little to the man who, by his conviction and release, had been made worse than an alien. Six years passed away, and Governor Dorr, no longer young, strong, or energetic, was given his civil rights: what cared the broken- hearted man! Three years more and the "omnipotent " legislature overruled the verdict of the court: does any one believe that such an act brought happiness to the dying man? Ten months later Thomas Wilson Dorr passed away, at the age of forty-nine.
Who was this would- be Governor; this disturber of the peace of Rhode Island; this pleader before Tammany Hall; this military
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THE DORR WAR.
leader; this prisoner at the bar? He was a man "endowed with intellectual powers which, had they been properly directed, would have always secured him a commanding influence. Those powers, too, were disciplined by an education more accomplished perhaps than any other man of his age in Rhode Island had been privi- leged to obtain. As a man of science and letters, he might have attained honorable. distinction, had he chosen to dedicate his time either to science or to letters. As a statesman he might have ren- dered his native State substantial service. He might have been a true-hearted, private gentleman, honored by the respect and con- fidence of the community in which he resided."(9) Such was the testimony of his most bitter enemy in the midst of the conflict which he had brought upon his State.
His friends could hardly say more. "Mr. Dorr is an educated gentleman of the most respectable family and connexions. He, personally, has stood high in the confidence and esteem of his fellow-citizens. His whole course of life, his sentiments, and his actions have been such as to free him from the imputation of hav- ing, in anything, been governed by other motives than a desire and a zeal for the best interests of his fellow-citizens and of the State." (10) When foes and friends so closely agree, we must accept their verdict as final.
The month of May, 1842, either changed the whole nature of Governor Dorr, or brought out traits that had never before been seen. The month was like a high wall, separating absolutely what . preceded from what followed it. Deserted by his friends, true as well as false, he enjoyed the confidence of no one. Aided before the Court by his lawyers, he nevertheless bore the brunt of the trial himself. He was set free from prison and granted his civil rights; but the interest and enthusiasm which eventually brought
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THOMAS WILSON DORR.
these favors was interest in the martyr, not in the personality of the martyr; enthusiasm for justice, not for the welfare of the man who had failed. Can such a condition of things be explained ? Can the inmost character of such a man be read and understood ?
How had Mr. Dorr shown his talents before the crisis in his life? How had the people expressed their confidence in him ? What had he accomplished? Before he reached the age of thirty the citizens of Providence chose him as one of their four Repre- sentatives in the General Assembly. Here he was active in many ways. A pronounced Whig, and strongly opposed to the national government as then represented by Andrew Jackson, (11) in Novem- ber, 1834, he brought into the legislature resolutions against the removal of the public funds from the Bank of the United States ; against executive control of the national treasury; against the spoils system in national politics; and in favor of rechartering the Bank of the United States.(12) These four resolutions were adopted by practically a two-thirds vote; but the youthful partisan found himself in a hopeless minority when he opposed an amend- ment proposing the taxation of State banks. Perhaps this pre- disposition in favor of the State banks shows that the enthusiasm for the national bank was more that of a party leader than of a firm believer in the truth of the cause; and it may help to explain the fact that six years later, in a Democratic caucus, Mr. Dorr presented resolutions praising President Van Buren especially for his "strenuous opposition to the late Bank of the United States." (13)
The young statesman, in his early career in the legislature, showed himself a friend of the debtor class by his fight against a bank law of his day. By obtaining a repeal of this law he deprived the banks of a power over debtors not permitted other creditors ; a power which practically made the bank a preferred creditor. (14)
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THE DORR WAR.
Mr. Dorr again appeared as a reformer in opposing the attempt made in 1836 to enact laws against the abolitionists, thereby incur- ring great hostility from the Whig leaders of the State. That which forever drove him from the Whig party was his position, early taken, in favor of the extension of the suffrage. From the twelfth of March. 1834, when his famous Address to the People of Rhode Island was issued, he was a suspected man in Whig coun- cils. When the Whigs failed to stand behind the constitutional
convention, Mr. Dorr retired from the party.
When he ran for
Congress, as a Constitutionalist, in 1837, and received seventy-two votes, not quite one per cent. of the entire vote, the break was complete. Two years later he was nearly elected Representative, as a Democrat, running considerably ahead of his companion on the Democratic ticket. (15) Politicians could not use a man of such independence, and he remained politically quiet until he was per- suaded to accept the People's nomination for Governor.
Nevertheless, Mr. Dorr was active in the public service outside of the State legislature. For several years he was one of the most valued members of the Providence School Committee. Many reforms in the management and conduct of the schools were car- ried through by his energy and push, and the present excellent condition of the Providence schools owes much to the fact that sixty years ago they had in him a true friend. When Mayor Brigham died, just as the agitation for a new constitution was begun, in February, 1841, Mr. Dorr received a nearly unanimous vote for President of the Board. (16)
Mr. Dorr was a leading member of the Rhode Island Historical Society. In the list of officers chosen in 1840 we find Chief Justice Durfee, Vice- President; Judge Staples, Secretary; and Thomas Wilson Dorr, Treasurer; and among the trustees: Thomas F. Car-
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