USA > Rhode Island > The Dorr war; or, The constitutional struggle in Rhode Island > Part 3
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THE RHODE ISLAND CHARTER.
the United States to-day. In time, as the Company developed into a political community, the freemen came to be considered merely as voters, and the expression non-freemen became identical with non-voters.
Among the first acts passed by the General Assembly, as early as May, 1664, was one limiting the right to vote on all affairs of the Company and Plantations to the freemen.(9) This was purely formal, merely putting into the form of a law the unexpressed but evident intention of the charter. The next May, the General As- sembly - in response to a request of the King's Commissioners - voted that "so many of them that take the aforesaid Engagement, and are of Competent Estates, Civil Conversation, and Obedient to the Civil Magistrate, shall be admitted freemen of this colony, up- on their express desire therein declared to the General Assembly, either by themselves, with sufficient testimony of their fitness and Qualifications as shall by the Assembly be deemed satisfactory, or
. by the Chief Officer of the Towne . . where they live." (10) The next year the Assembly deputed the business of admitting freemen to the several towns, merely reserving the right of super- vision, which was seldom, if ever, exercised. (11) It seems probable that the requirements of the law as to "Civil Conversation " and to be "Obedient to the Civil Magistrate" did not prevent many applicants from being admitted as freemen. As to the words " Competent Estates," no action was taken for sixty years looking to any official decision as to the requisite size of a competent estate.
In 1723-4; the General Assembly passed an act granting ad- mission as freeman to a "freeholder of lands, tenements, or here- ditaments in such town where he shall be admitted free, of the value of one hundred pounds, or to the value of forty shillings per
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THE DORR WAR.
annum, or the eldest son of such freeholder; any act, custom, or usage to the contrary hereof, notwithstanding." (12) While the word- ing of this act would allow any town to refuse the rights of free- manship even to those possessing real estate of the requisite value, in actual practice this property requisite became the sole qualifica- tion for admission to the privilege of the suffrage. The relic of primogeniture which is found in this act-namely, that the eldest son of a freeman is exempted from the property qualification -- con- tinued to be a law in Rhode Island until 1843, and furnished an additional opportunity for criticism of the "landed aristocracy." An act of 1742 is of great significance in the change of the meaning of the word freeman from that of a membership in a corporation to that of a person possessing the right to vote.(13) In substance, it took away the right of suffrage from those freemen who, ad- mitted at some former time, did not, at any election, possess the requisite real estate. In other words, to be once admitted as a freeman did not convey a life right of suffrage, as the privilege of voting at any election depended upon the possession of the neces- sary amount of real estate at that particular time.
In 1729 the one hundred pounds test was increased to two hundred, and in 1746 to four hundred pounds. (14) The qualifica- tion continued at this value until 1760, when it was placed at forty pounds. (15) When the General Assembly revised the laws in 1798 -the English money system having gone out of official use-the value of the requisite real estate was declared to be one hundred and thirty-four dollars, or a rental of seven dollars per annum. (16) It was permitted, at this time, that the property should lie within the State; not, as before, necessarily within the town in which the candidate for admission as a freeman presented his request. In brief, then, the qualification was at first one hundred pounds, then
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THE RHODE ISLAND CHARTER.
two hundred pounds, later four hundred pounds, then forty pounds, and finally one hundred and thirty- four dollars. This fluctuation is at first sight an indication of fickleness in the character of the Assembly, but an explanation has been given which appears rea- sonable. It is claimed that real estate worth, in the money of the day, one hundred pounds in 1723 would cost not far from four times as much in 1746, and still be of about forty pounds value in 1760. At any rate, it is certain that the value of the currency changed between 1720 and 1760 in much greater degree than is suggested by these values of land.
Such are the most important features of the Charter of 1663 as interpreted by the later history of the colony. It remains to examine some of the acts of the Assembly which have sometimes been described as contrary to the charter and as proofs that the charter was never considered binding as a fundamental law. The first is the statute, already described, by which the Assembly in 1666 delegated to the separate towns the right to admit freemen, though the charter placed the "power and authority " to admit persons into the Company in the General Assembly : the question is merely a constitutional doubt as to the right or power of a leg- islative body to delegate an executive act to another subordinate body. The second is an act of 1669 granting the freemen the choice either to come in person to Newport, on the first Wednes- day in May, to vote for the general officers of the colony, or to send a proxy vote to be cast in their stead, (17) apparently in viola- tion of the words of the charter directing that these officers shall be chosen " by such greater part of the Company . .. as shall be then and there present." Whatever the usurpation, it was increased by a statute of 1760, taking away altogether the privilege of at- tending the general election at Newport and voting there ; all free-
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THE DORR WAR.
men were henceforth required to vote in their respective towns. (18) These two acts may be considered merely as based on the legal fiction that the freemen were still present at Newport in their proxies, which were always carried there to be counted ; or they may be considered amendments to the charter, adopted by the legislature and tacitly accepted by the freemen. The third change was brought about by a vote of the General Assembly, in 1796, to sit in two bodies:(19) the later claim that it thereby ceased to be a " general assembly " in the sense of the charter is hypercriticism, as is also the complaint because in 1798 the Assistants were re- named Senators. (20) Such minor details are almost unworthy of notice and hardly deserve the name of amendments, though tech- nically they are changes of the fundamental law. The fourth al- legation of unconstitutional action is the statute passed by the Assembly providing who should act as Governor in case of the Governor's absence : though the charter said nothing on this point, the statute is surely not hostile to the charter.(21) Fifth, the reso- lution of 1771, refusing the right of appeal to the king in council, unless the matter in controversy were worth three hundred pounds, does not seem to have been usurpatory, in view of the very compre- hensive legislative powers which the Assembly had received from the charter : " Power to make, ordain, constitute or repeal such laws, statutes, orders and ordinances, forms and ceremonies of gov- ernment and magistracy, as to them shall seem meet." (22)
Having thus eliminated minor questions of changes in procedure and organization, we are ready to consider whether the Rhode Is- land charter was lawfully the Constitution of the State in 1840. Applying the criteria mentioned above, we must accept the con- stitutional working of the charter. First, it was the fundamental law : except for a few amendments of slight importance, made by
+
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THE - RHODE ISLAND CHARTER.
legislative acts and confirmed by the tacit consent of the people, all the laws, statutes, ordinances, and acts had been subordinate to the charter. Second, the charter contained the requisite provisions for the formation of the government and for the performance of legislative, executive, and judicial functions. Third, the charter was accepted by the "great concourse" of freemen when, in 1663, they received the document with "great joy." Fourth, the charter had been continuously acknowledged by the later inhabitants of the State, and it, therefore, had never lost its authority. Though, at infrequent intervals, complaints had been made against the charter, these never went farther than words, and no open rebellion or se- cret opposition had ever weakened its force. .
The conclusion is inevitable that the charter granted by King Charles, accepted by the people, creating a new government of the colony, remaining unimpaired, unimpeached, supreme, and scarcely amended for nearly two centuries, was the Constitution of the State in 1840, as it had been in 1663, in 1776, and in 1790. This con- clusion - reached from internal facts - is corroborated by external conditions. Members of the Continental Congress, Senators and Representatives in the United States Congress, had been accepted without question, although the provisions for their elections were made by the General Assembly sitting in accordance with the reg- ulations of the charter. The President of the United States, and the National Supreme Court as well, had practically acknowledged the charter Constitution by dealing with the charter government. Though this fundamental question of the constitutional character of the charter scarcely needed discussion here, it has given an opportunity to place the document in its proper light, to explain and illustrate its characteristics and workings, and to bring before us the original causes of the demand for a constitution, which,
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after many years of ebb and flow, culminated in the Dorr Rebel- lion and, a little later, in the adoption of the present Constitution of the State.
AUTHORITIES. - 1 Arnold. History of Rhode Island, I. 143. 2 Arnold, I, 114-115. 3 Ar- nold, I, 238. 4 Arnold, I, 251. 5 Arnold, I, 279-280. 5 l'otter, Considerations on the Rhode Island Question, 5. 6 R. I. Col. Records, VII, 522-526. 7 K'. 1. Col. Records, VII. 581-582. S R. I. Col. Records, VIII, 364-365. 9 R. I. Col. Records, 11, 58. 10 R. I. Col. Records, 11. 113; Causin's Report, 53. 11 Digest of 1730, 16; Arnold, I, 237. 12 Digest of 1730, 131 ; Arnold, Il, 77-79. 13 R. I. Col. Records, V, 57. 14 Digest of 1730, 209 ; Digest of 1752, 12. 15 R. I. Col. Records, VI, 257. 16 Digest of 1798, 114-126. 17 R. I. Col. Records, II, 62. 18 R. I. Col. Records, VI, 256. 19 R. I. Col. Records, III, 313. Compare Idem, II, 63, 144, 151, 181. 20 Digest of 1798, 127. 21 R. I. Col. Records, II, 71. 22 R. I. Col. Records, IV, 250.
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1
CHAPTER III.
EARLY MOVEMENTS FOR A CONSTITUTION.
1775-1838.
I N the war of words which broke out in Rhode Island during the summer of IS42, one of the most important causes of dispute was connected with some previous movements for a constitution and for an enlarged suffrage. The most extreme view of the Suffragists of 1842 was well presented by a " Member of the Boston Bar," who claimed that the people of Rhode Island had, "for more than forty years, been quietly endeavoring, by pe- tition and appeal to the legislature of the State, to procure for themselves what every other member of our federal republic had long possessed-a constitution ; and whose prayers [had], for nearly a century, been alternately refused and insulted." (a) Radically op- posed was the view held by many of the leading citizens of the State, whose ideas were thus expressed by Francis Wayland, Pres- ident of Brown University : " It is proper to add that, until very lately, it has been really doubtful whether a change was actually
(n) Review of President Wayland's Discourse, 3. This brochure, written by a " Member of the Boston Bar," has been commonly attributed to John A. Bolles.
4
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THE DORR WAR.
desired by any large number of our citizens. Petitions on this sub- ject were, it is true, several times presented, but they never seemed to arise from any strong feeling, nor to assume a form that called for immediate action. It has really been a matter of surprise to me that the question awakened so little attention."(1) It is impor- tant to ascertain which of these positions more nearly accords with the facts of history. To understand the position of the non-freemen of Rhode Island in 1842, it is necessary to trace the history of the various steps which had been previously made in behalf of, and in opposition to, a more liberal constitu- tion and a freer suffrage, and to ascertain the strength of the previous demand. Could the non- FRANCIS WAYLAND, PRESIDENT OF BROWN UNIVERSITY, 1827-1855. freemen claim the same right to inaugurate a
revolution as their forefathers undeniably had in 1776 ? Could they as truthfully say : " In every stage of these oppressions We have Petitioned for Redress in the most humble terms; Our re- peated Petitions have been answered only by repeated injury?"
The years of the American Revolution were a period of con- stitution-making throughout the Union. Eleven States had drawn
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EARLY MOVEMENTS FOR A CONSTITUTION.
up and adopted written "forms of government " before the Federal Convention promulgated the Constitution of the United States. Even Connecticut, while satisfied with her existing charter gov- ernment, deemed it best to take the formal action of adopting her charter as the Constitution of the State. In Rhode Island the matter was brought up in the legislature in September, 1777; and an able committee of five, headed by the Deputy- Governor, was appointed "to form a Plan of Government for this State." The unsettled condition of the State, due mainly to the presence of the British forces on the island of Rhode Island and to the inevitable dread and uncertainty, was not favorable to the preparation of a new constitution ; and, since the State did not need any different government from that of her colonial days, no further record has been found of a " Plan of Government."
Twenty years later, in 1797, the idea of a new constitution was again presented, but met with the adverse action of the General Assembly in a form and for reasons of which no record has been discovered.(b) The chief interest of this period lies in the Fourth of July oration delivered by Colonel George R. Burrill, a leading lawyer and a brother of United States Senator James Burrill-an argument in favor of the rights of the majority and criticising the charter apportionment. (2) " Representation always supposes propor- tion," says the orator. "Equal representation is involved in the very idea of a free government." Burrill had, however, come to realize that any change in the government would be difficult to obtain. "To petition this legislature for equal representation is to require the majority to surrender their power-a requisition which
(b) The records of the General Assembly of a hundred years ago contained no allusion to bills that failed of passage, and no account of this movement has been found in the newspapers of the day.
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THE DORR WAR.
it is not in human nature to grant." Hence he saw no method left but to ignore the General Assembly and proceed to form a constitution without its aid. This movement of 1797 failed for lack of support, and nothing further is heard of any demand for constitutional tinkering for fourteen years.
An enlargement of the suffrage was proposed in ISHI which may only indirectly be called a demand for a constitution, inas- much as it seems to have been the general opinion that the Gen- eral Assembly had entire power to change the suffrage qualifications by virtue of the provisions of the charter. An act was proposed to extend the suffrage to all male citizens, twenty-one years of age or over, who paid a poll or property tax or were enrolled in the militia, and who had resided in the town for a year. This bill passed the Senate, but was laid upon the table by the House. (3) The final action was preceded by a long debate, in the course of which a remarkable petition in favor of the bill was presented by several freemen.(c) Instead of the usual arguments in favor of an extension of the suffrage, the petitioners declared themselves opposed to the existing qualifications on the ground that they presented an opportunity for fraud. In order to manufacture the one hundred and thirty-four dollar real-estate qualification a large landowner would give a quasi life-lease. of land on the condition that the lease should be forfeited at the end of the year if the rent were unpaid. The lessee thus, says the petition, becomes a freeholder of landed property which he does not use, has not purchased, and for which he does not intend to pay any rent. The petitioners preferred an almost universal suffrage to a suf-
(e) Both bill and petition are said to have been prepared by John Pitman, later United States Judge of the District Court of Rhode Island, and a prominent opponent of the suffrage movement of 1842. Burke's Report, 206-209.
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EARLY MOVEMENTS FOR A CONSTITUTION.
frage thus fraudulently enlarged, and which admitted only bribable votes. (d)
In 1818, after a long and thorough discussion, Connecticut laid aside her charter and adopted a new constitution. The influence of this agitation was evidently felt in Rhode Island, since as early as October, 1817, a tentative resolution looking toward a constitu- tion passed the House of Representatives. (+) By this bill, a com- mittee was appointed to draft a call for a "Convention of the people to consider the expediency of forming a Constitution for this State." The committee, within a few days, reported a call for a convention, and the House, after a full debate, postponed consid- eration until the February session, though it ordered that the call be printed. The postponement was considered at the time "tanta- mount to a rejection," a prophecy which was fulfilled, inasmuch as the matter was not brought up again in the legislature for more than three years.
Scarcely a word of complaint is to be found during this inter- val, and it required the meeting of the Massachusetts Constitutional Convention of 1820 once more to interest the Rhode Islanders in the matter. This time the movement began with the newspapers of Providence, in editorials and communications, all of which criti- cised the omnipotence of the General Assembly or the subordinate position of the State judiciary. No mention is made of the repre- sentative apportionment nor of the suffrage qualifications. As a result of this agitation an act passed both houses, without opposi- tion, at the February session, 1821, requesting the freemen, at the
(d) No record has been preserved of the debate in the Ilouse, but the feeling of conservative Rhode Islanders may be seen in the brief comments of the newspapers of the day. "After a long debate, in which the evil and wickedness of the bill were fully discussed, it was postponed until next session." Rhode Island American, March 5, ISHI ; Newport Mercury, March 9, ISII.
.
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THE DORR WAR.
regular April election, to cast their ballots for or against the hold- ing of a Constitutional Convention. (6) Unfortunately, the question of the convention became involved in a bitter sectional contest over the governorship. For more than thirty years the governor had been a Providence man; but, in 1821, William C. Gibbs, of New- port, was elected Governor by a plurality of a thousand in a total vote of sixty-six hundred. () The advocates of a new constitution belonged mainly to the Providence party, and the natural result was the defeat of the convention : out of 3,500 votes cast on the question, 1,600 were in favor and 1,900 against the proposition. (s) The votes in favor of the convention came almost entirely from the northern part of the State. (e)
Except for a brief discussion in the newspapers,(9) in September, 1821, which ceased, however, almost as soon as it began, the next appearance of the matter was in January, 1822, when the General Assembly again asked the people their wish in the matter. (10) No special interest seems to have been taken in the question, nor in fact in any political matter. The convention was defeated by a majority of about a thousand at the April election, when the total vote for governor was scarcely over two thousand.(11) The Rhode Island American declared that "in the present state of political affairs" the defeat was "a source of congratulation rather than regret to many of the warmest friends of a well- balanced constitu- tion." (12)
In spite of these two defeats of 1821 and 1822, the demand for a constitution was renewed in the autumn of 1823. The agitation led to the appointment, at the October session of the legislature, of
(e) The Providence county vote stood 1, 100 to 200 ; Bristol county, 177 to 8. On the other hand, in Newport county, the no majority was about S to 1; in Washington county, 7 to 1 ; and in Kent county, 3 to I. Providence Gazette, May 9, 1821.
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EARLY MOVEMENTS FOR A CONSTITUTION.
a committee of ten to report to the next session "on the subjeet of a written Constitution for the State."(13) In January, 1824, a bill was reported ealling a "Convention for the purpose of forming a written Constitution of government for this State."(!) A long dis- cussion followed a motion of Asher Robbins, later United States Senator, to strike out the main seetion of the bill; the principal arguments against the convention lay in the faet that the people had not asked for it and the presumption that they did not want it. (f) The amendment failed by a vote of IT to 54, and the bill calling the convention was passed. During all the diseussion, the only suggestion as to the possible content of a new constitution was the remark of Mr. Hazard, of Newport, that he would be will- ing to vote for a constitution which should provide a fair and equal representation. (15)
The eall for the convention limited to the freemen the right to ehoose delegates, and apportioned these to the towns in equal num- ber with their representatives. (16) These two features of the eall were only natural, especially as there does not seem to have been any demand for any other arrangement. The election of delegates was set for the April town meetings ; the convention was directed to meet at Newport in June; and the constitution formed was to be ratified by a three - fifths vote of all the freemen at a special election. The proposed convention aroused little interest among the people, and the vote for delegates was light. (17) There is no way of aseertaining the exaet vote, but the election for governor indirectly shows the absence of enthusiasm. (g) -
(1) The Speaker of the House, Albert C. Greene. later Attorney-General of the State for eigh- teen years, suggested that if the people did not want the convention they might refuse to elect delegates. Rhode Island American, January 20, 1824.
(B) James Fenner, who had been Governor from 1807 to 1810, was elected Governor again in 1824, and annually re-elected until 1831 ; he was again entrusted with the chair in 1843 and 1844.
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THE DORR WAR.
The convention met as directed, June 21st, 1824, and on July 3d issued a plan for a constitution of the usual form :(19) it distributed the powers of government, arranged for the legislative, the execu- tive, and the judiciary departments, contained a Bill of Rights, and provided for elections, suffrage, amendments, etc. No change of importance was made in the suffrage qualifications, except that the eldest son of a freeholder was no longer exempted from the real es- tate requirement. A proposition had been made in the convention, by Dutee J. Pearce, to extend the suffrage, but it was voted down, three votes only being cast in its favor. (19) As to the representa- tion, the convention tried to arrange an apportionment which should satisfy large and small towns alike. Leaving the election of the ten Senators as it had been-that is, at large-it provided for the House of Representatives a scheme of proportionate representa- tion.(h) This apportionment would have furnished, according to the census of 1820, a House of Representatives of seventy-three members-six towns choosing three members each, Newport four, Providence five, while two cach would come from the twenty-three other towns. It would be a matter of surprise if this apportion- ment had not aroused great opposition in several towns and if it had awakened much enthusiasm in any.
The State remained very quiet during the summer and early autumn of 1824, before the special election of October. The Providence newspapers, after favorable editorials in the early part of July, when the constitution was published, were willing to let matters take their own course. The question before the people
In 1824, however, he received but 2, 100 votes to 600 for his opponent, a total little more than one- third that of the election of 1821. Rhode Island Manual. 186-7, 97, 99, 102.
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