USA > Rhode Island > The Dorr war; or, The constitutional struggle in Rhode Island > Part 7
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First and foremost always were the suffrage qualifications, which, though established by the legislature, had become practically a part of the constitution. The relative proportion between the freemen and the non-freemen in 1841 is difficult to ascertain, since there were no enrollments of all the freemen: the largest number of votes cast in the State had been 8,402 in 1818, and 8,283 in 1840. (3) A conservative estimated that there were about 11,000 qualified voters,(4) but the secretary of the People's Convention asserted that there were not more than 9,600 freemen;(5) the true number in 184I was probably about 10,000.
The number of possible voters, under an enlarged suffrage, is even more difficult to ascertain. The suffragists estimated 25,674 free white males over twenty-one, or nearly one-quarter of the entire number of inhabitants; subtracting 3,000, the number of " aliens, non - compos, insane, under guardianship, and criminals," they claimed 22,674 as the number of probable voters, under a sys- tem of universal suffrage. The conservatives, on the other hand, taking as their model "of a greatly extended franchise" the suf- frage qualifications in Massachusetts, found that about one in six of the population voted in 1840, and counting the same rate in Rhode Island the population of 108,837 would give 18,139 voters in that State. These rival figures make it certain that the 10,000
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or more actual freemen were scarcely one-half of the possible voters, and that the limitations on the suffrage in Rhode Island were greater - than those of any other State. (a)
The advisability of rendering the suffrage less restricted was ac- knowledged by many of the opponents of the suffrage party. "We cannot blame those whom the existing laws exclude from the suf- frage, for desiring to be included; Let us, then, while we steadily adhere to the main principle of our compact, so modify our laws in extension of that principle, that every man among us, who has a real interest in our prosperity, may, if he desires it, find a ready, easy, peaceful, and lawful admission to our suffrage, with an equal right to be chosen to the offices which we dispense."(6) Presi- dent Wayland, of Brown University, said : " I believe it to be at present universally conceded that it would have been better if a change in the elective franchise had been made many years since." (7)
It must not be overlooked that the proportionate number of persons excluded from the suffrage was continually on the increase. So long as Rhode Island remained an agricultural community, with
(a) In a few States the ownership of land was a restricting or an alternative qualification : in Connecticut, either- a freehold of $7 00 yearly valuc, or a year's performance of military duty, or the payment of taxes, together with good moral character, were required ; in Virginia, either a freehold of $25.00 value, or reversion in land worth $50.00, or occupancy of a leasehold estate at a rent of $20.00, or a housekeeper and head of a family who paid a State tax, were necessary ; in South Carolina, a freehold of fifty acres or a town lot ; in North Carolina, to vote for Senator, a freehold of fifty acres of land. The following States required, as a necessary-or at least as an alternative- qualification, the payment of taxes : Connecticut, Delaware, Georgia, Louisiana, North Carolina, Ohio, Pennsylvania, and Virginia. The States that had no requirements except those of residence, the franchise demanded by the suffrage party in Rhode Island, were : Alabama, Illinois, Indiana, Kentucky, Maine, Maryland, Michigan, Mississippi, Missouri, New Hampshire, New York, Ten- nessee, and Vermont. In addition, it may be noted that Georgia, Louisiana, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, South Carolina, and Virginia required a landed qualification of the governor or the members of the State legislature, or both. The universal suffrage denianded by the leaders of the movement in Rhode Island was the rule in about half of the States, and it was, doubtless, somewhat unwise to attempt to replace the very limited suffrage by one so extremely broad, and one not granted by any of the neighboring States. Poore's Charters and Constitutions. See, also, Address of the Convention of 1834, Burke's Report, 176-178.
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sparse population and cheap land, it had been easy to-obtain the property required. But when the State became a manufacturing and commercial community, the "political power of the State had passed into the hands of a minority," or, to quote a somewhat ex- travagant address to the people: "A chartered minority, or less than one-third of the male adult population, governs the majority, comprising more than two-thirds of the citizens; imposes taxes on them at will; denies them all natural and social rights of equality; divests them of the best guarantee of freedom (the elective fran- chise), and excludes them from any representative voice in legisla- lation or government."
The second criticism of the charter government lay in the disproportionate apportionment, to remedy which the Freemen's Convention was primarily called. A fixed apportionment is always subject to two difficulties : old communities may stand still or de- cay, and thus have undue representation; new communities may spring up, with inadequate representation; both causes worked un- favorably in Rhode Island. At the first census, in 1708, the nine towns had a total population of 7,181 ; Newport's six Deputies rep- resented 2,203 persons, and the four from Providence represented 1,446, thus making an unusually equal apportionment; the other towns that had four Deputies, Warwick and Portsmouth, had, how- ever, a population of but 480 and 628 respectively ; and the five towns with but two Deputies each varied from 206 in Jamestown to 1,200 in Kingstown. In 1776 quite a different story may be read out of the statistics: 161 persons in Jamestown were repre- sented by a Deputy in the 'Assembly, and 1,644 in Scituate had the same representation. These numbers illustrate the greatest divergence, but not the most undesirable features of the apportion- ment. Less complaint would have been made if all the towns had
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been equally represented, without regard to population; but the double and triple representation of the four original towns was the cause of the greater part of the difficulty. Warwick, with its 2,376 inhabitants, had twice as many Deputies as either Glocester, Scitu- ate, Smithfield, North or South Kingstown, each of which boasted a larger population than Warwick. Sixteen towns registered a greater number of inhabitants than Portsmouth, though each of them had but half its representation.
By 1840 the unfairness of the fixed apportionment had become greatly intensified. The only apparent remedy was to divide the large towns and thus secure more members. This process had been frequently used, but there was a limit to it, as a glance at the map of the State in 1840 will show; and the unequal growth of the indivisible towns like Providence prevented any general correc- tion of the abuse except by means of reapportionment. A few of ยท the inconsistencies may be briefly noted. Sixteen of the thirty-one towns had a total population of 22,995, and sent to the Assembly thirty-four Representatives; but the 23,172 inhabitants of the town of Providence were represented by only four Representatives. Smithfield had a population which lacked but sixty-four of equaling that of nine other towns which together were allowed ten times its representation. A Representative from Jamestown represented 182 and one from Barrington 274 persons, while one from Smithfield had a constituency of 4,757, and from Providence, 5,793. The aver- age population which each Representative from Newport county represented was. 844; from Washington county, 1,024; from Bristol county, 1,OSo; from Kent county, 1,308; from the whole State,
1,512. On the other side of the scale may be placed Providence county, which sent one Representative to the General Assembly for every 2,640. The comparison by counties shows that the con-
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test must become sectional, for Providence county, occupying the entire northern portion of the State, had a population, in IS40, of 58,073, against 54,500 in all the rest of the State; but by the charter and the number of its towns the county was restricted to twenty-two out of the seventy-two Representatives.
The possibility of obtaining any change, or at least a change radical enough to satisfy the large towns, seemed very doubtful to the suffrage party-since the apportionment of delegates to the Freemen's Convention showed illiberal views as to what would be a fair proportionate representation : Providence, with its 23,172 in- habitants, had but six times as many delegates in the convention as had Jamestown, with its 365 inhabitants. The General Assem- bly was, in this respect, extremely conservative-making as little change from the charter apportionment as possible, and yet not daring to refuse to grant a partial relief. Very few reasons were stated in opposition to a fairer apportionment, except the claim that the existing system had worked well; that both branches of the legislature ought not to be based on population; that other States-as, for instance, Connecticut and Vermont-were no bet- ter off; and that, in any case, but slight changes were necessary, as all the towns, except Providence and Portsmouth, were within one of their proportionate number of representatives.(8) Neverthe- less, the inequalities were glaring, and this second cause of griev- ance needed a remedy.(9)
The third trouble arose from the great power committed to the General Assembly. The restrictions placed upon it by the charter were inconsiderable; custom only restrained the legislature from being omnipotent. The criticism of Mr. Dorr, in his trial, upon the power of the legislature, is scarcely too strong : (10) " The Gen- eral Assembly had so long acted according to their mere will and
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pleasure, that they deemed themselves and virtually became omni- potent within their sphere." An amusing instance of the general feeling is found in an alleged remark in the midst of a legislative debate :(11) " Mr. Speaker, the member from - is very much mis- taken when he supposes that this General Assembly can do any- thing that is unconstitutional. Sir, I conceive that this body has the same power over the non-freeholders of this State that the Almighty has over the Universe."
Some other criticisms of the charter as a constitution were oc- casionally brought forward, though they had little influence in the agitation. Thus, the charter contained no Bill of Rights-that " important bulwark of the liberties of the people."(12) The levying of taxes upon the non-freemen, and also the requirements of mili- tary and fire duty, seemed unjust, and led some to join the suffrage party. (13) Complaint was made that non-freemen had not complete protection of their property, since without the assistance of a free- man they could not appeal to the law for the collection of a debt. (11) The fact that only freemen could serve upon a jury was another cause of complaint, and the statement was common that trial by one's "peers " was not granted the non-freeholders. (15) Finally, the charter was set forth as the gift of an autocratic monarch of a country from which the State had successfully revolted, and a con- stitution should be the act of a free people providing for their own government.
Although the non -freeholders had many good and sufficient reasons for complaint,(b) their social and economic position was not
(1) " We happen to know that for about fifteen years the author of the 'Discourse' has resided in Rhode Island, paying taxes every year, yet never allowed to vote, nor to exert his influence, or lift up his voice, in the affairs of government, nor to sit upon a jury, nor to claim the protection of law by sueing out his writ. All this may, in his opinion be no injury, no infringement of liberty,
- no more than an inconsiderable loss. Answer to Wayland, 12."
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so oppressive as might be judged from the list of grievances. Few felt maimed by the lack of the rights and privileges for which they clamored. Elisha R. Potter, a Representative in Congress from Rhode Island, was too strong an opponent of the suffrage party to be sensitive to the hardships of the non-freemen; nevertheless, there is much truth in his statement: "Under that old charter we have enjoyed more happiness and better government than any other State in this Union; we have had very little class legislation ; we pay no high salaries; we have had no direct taxes for twenty years ; the taxes paid by the banks support our government; we had good courts, and our laws were cheaply and economically ad- ministered, so that the poorest could obtain redress for injuries."(16) The New York Courier and Enquirer declared that the general content was shown by the "records of the Republic, the history of that State in particular, and the testimony of every man of intel- ligence in the country."(17) " This charter of government," says George Bancroft, the historian, "constituting, as it then seemed, a pure democracy, and establishing a political system which few be- sides the Rhode Islanders themselves believed to be practicable, remained in existence till it became the oldest constitutional char- ter in the world. The probable population of Rhode Island, at the time of its reception, may have been 2,500. In 170 years that number increased forty fold; and the government, which was hardly thought to contain checks enough on the power of the people to endure even among shepherds and farmers, protected a dense pop- ulation, and the accumulations of a widely-extended commerce. No where in the world were life, liberty, and property safer than in Rhode Island." (18)
However, with a government based upon an antiquated funda- mental law, with a limited suffrage, with unequal representation,
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with a legislature under no legal control but the semi-annual elec- tions, and without a Bill of Rights, it was not strange that the non- freemen, paying taxes, serving as firemen and in the militia, and kept out of the jury box, should manifest a desire for a new con- stitution. The strange thing is that the desire had not been ex- pressed carlier and more plainly. But how was this coveted result to be obtained? Was there a likelihood that a constitution could be drawn out of the "landholders?" Or, if they did provide a new frame of government, was it probable that it would be satis- factory? Had not the freemen refused to call a convention in 1821 and again in 1822? Had they not voted down a constitu- tion in 1824 which contained but few of the changes now desired ? Had they not failed to form a constitution in 1834, because the interest of the freemen in the matter was not sufficient to keep a quorum together ?
Besides the failures in the past and the more recent legislative rebuffs, the suffrage party had good reason to feel that, a priori, the freemen would not grant their requests; that they had the same feeling in 1841 that Colonel Burrill expressed forty-four years earlier : the natural repugnance of the "ins." Under such circum- stances how could the non-freemen obtain their desires? Early in the movement, before the April parade, came the answer of the suffrage party. (19) " There are two remedies for this-either the whole people may form a constitution, or in the Supreme Court of the United States, they may try the constitution of our present government. The former course the suffrage party have decided upon, although we think that the whole matter will eventually be settled in Congress or the Supreme Court."
The plan for " the whole people" to form a constitution is the key note to the whole controversy that raged in Rhode Island un-
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til finally the United States Supreme Court was reached. Before this question all controversies as to franchise or apportionment, all discussions as to universal suffrage or the rights of the majority to rule, are matters of little consequence. The claim was made that the call for this People's Convention was right; that the con- vention had a prima facie legality; that the constitution which it should form would be the fundamental law of the State, if ratified by a majority of "the people." The simplest statement of this claim, as made by the suffrage party, is found in the words of Benjamin F. Hallett, in his argument before the Supreme Court of the United States: " It is a right of the people to change, alter, or abolish their government, in such manner as they please ; a right, not of force, but of sovereignty."
AUTHORITIES. -- 1 Burke's Report, 644-645. 2 Burke's Report, 269-271, 410-412. 3 Rhode . Island Manual, 1896-7, 98, 102. 4 Providence Journal, May 1, 1841. The method of estimating was as follows : In the city of Providence there, were 1, 721 names on the ward lists, of which 1, 312 voted. At the same rate, the 8, 283 votes cast in the State would indicate 11.000 voters. 5 Burke's Report, 120-121. 6 Providence Journal, Aug. 21, 1841. 7 Wayland, Affairs of Rhode Island, 13. S Providence Journal, May 25, 1841. 9 Providence Journal, Feb. 10, 1841. 10 Turner, Trial of Thomas IV. Dorr, 53; see, also, Burke's Report, 270. 11 New Age, Jan. S, 1841. 12 Burke's Report, 270. 13 Reply to Wayland, 12 ; Burke's Report, 12, 163, 249. 14 Burke's Report, 13, 249. 15 Burke's Report, 13. 16 Congressional Globe, I Sess., 28 Cong., 1843-44, App. XIII., 26S. 17 New York Courier and Enquirer, as copied in the National Intelligencer, May 19, 1842. 18 Bancroft, History of the United States, 10th Ed., II, 64. 19 New Age Mar. 26, IS41
CHAPTER VII.
THE ISSUE.
T HIS is not the place to enter into any thorough or ex- haustive discussion of the questions of sovereignty and constitution - making. Instead, we will merely set forth a few of the arguments that were advanced by the advocates and opponents of the doctrine cited at the close of the preceding chap- ter, and thus determine the real status of the Rhode Island move- ment-whether it may be called legal or revolutionary.
The suffragists came out boldly with their doctrine. The Suf- frage Association, in its Declaration of Principles, (1) " Resolved, That the power of the State should be vested in the hands of the people ; and that the people have the right from time to time to assemble together, either by themselves or their representatives, for the establishment of a republican form of government. Resolved, That whenever a majority of the citizens of this State, who are recognized as citizens of the United States, shall, by their delegates in convention assembled, draught a constitution, and the same shall be accepted by their constituents, it will be, to all intents and pur- poses, the law of the State." The State Suffrage Committee de- clared that a "majority of the 'governed' have, at any time, and on any occasion, a right to change their government-a right which,
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being inherent, unalienable, and indefeasible, not even they can part with by their free and voluntary act."(2) Thomas W. Dorr, in the People's Convention, said : "We ask for no authority from the legislature to empower the people to assemble in convention, or to vote for or against the doings of that convention. We need, and can have, no higher commission for our proceedings, than that is derived from the sovereign power of the State." (3) But the suffrag- ists took a more pronounced position, and presented arguments to support a legal right of amending the constitution at will. They claimed that "what was a revolutionary right merely, a right of war, in countries where the sovereignty was not held to reside in the people, had here, by the act of the people, been transplanted into the pale of. government itself, by our declarations and constitutions, which recognize the right of the people, on the outside of all or- ganizations, to act for themselves. A right which is thus recog- nized, though in a general way, and, of course, without prescribed forms of proceedings, ceases to be revolutionary, and has become regular and definite." (1)
In reply to these opinions, the conservatives attempted to show to what results they would lead. In an article in the New Eng- lander, an illustration of these principles was thus set forth :(5) " If it should happen in any State that an actual minority should elect a governor, the majority could immediately get rid of him in a legal way, by assembling on the authority of this right of revolution, either in mass or by delegates, and framing a new constitution, and under it electing a new governor, who would be the legal chief magistrate to whom civil obedience is due, while through the silent operation of law the former governor becomes at once guilty of treason, if he remains longer in office." President Wayland de- clared that " the principles which have been avowed, seem to me as
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utterly subversive of all other governments as they are of our own. If an established government may be overturned on the principles which have been advocated, . . no constitution in the land is worth the parchment on which it is written. The only law that would be known would soon be the law of force. The only principle of action would come to be the love of plunder. All that would be necessary, in order to establish unlimited power over us, would be, without form of law, to lay claim to a majority, and assemble a suf- ficient number of armed men to carry its decisions into effect."(6) Judge Pitman considered that "majorities, real or pretended, will find all things lawful and all things expedient, and should they be fettered by constitutions, or forms of government, they have only to resolve themselves into 'their original sovereign capacity,' and they may act their pleasure, until another faction, stronger than they, shall arise to make them feel, in their turn, the miseries of such licentiousness and anarchy."(7)
After suggesting the possibilities underlying this doctrine of sovereignty, the opponents of these principles declared that such acts were without law and against the laws of the State. They declared that a constitution so obtained would be " voted for with- out the forms of law, and of course in such a manner that none could pretend to determine what expression of the wishes of the people it really sanctioned."($) Dr. Channing was quoted as saying that a constitution was " the act of a people imposing limits on itself, setting guard on its own passions, and throwing obstructions in the way of legislation, so as to compel itself to pause, to delib- erate, to hear all remonstrances, to weigh all rights and interests, before it acts."(9) Another reply to the arguments in favor of the legality of this method of constitution-making is directed to Gov- ernor Morton of Massachusetts. " You have confounded in your
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own mind, or would confound in the minds of others, the great distinction between revolution and reform. Revolution is not to be regulated by law. This is an appeal to force against the law and the government. But the right of reform is to be exercised in conformity with the fundamental laws of the State and the rights of the government, and if a portion of the people, under the pre- tense of reform, violate their allegiance to the government, and set up a government upon their own authority, this is rebellion and treason, and it is the duty of the government to put it down." (10) One of the "Law and Order" Representatives to Congress declared in the House that "he did not deny the right of revolution to the people; he did not deny the right of the people to change the form of their government, when it was administered contrary to the principle on which it was established, or when it was oppressive and could not be endured; but he did not admit that they could change it as often as they pleased, without law, against law, and without any cause."(11)
Some of the lawyers of the suffrage party made a thorough search of the writings of the leading exponents of the Constitution of the United States, and brought together the paragraphs, sen- tences, and clauses which appeared to support their position that " the people of Rhode Island had the right, of their own sovereign will, and without the consent of, the existing authorities of the State, to change, alter, reform, or abolish the government."(a) They cited first the Declaration of Independence: "Governments are in- stituted among men, deriving their just powers from the consent of the governed; when any form of government becomes destructive of these ends [that is, the rights just enumerated] it is the right
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