USA > Rhode Island > The Dorr war; or, The constitutional struggle in Rhode Island > Part 8
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(") These are the words of the majority of the select committee. Burke's Report, 25.
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THE DORR WAR.
of the people to alter or abolish it." They quoted from the fare- well address of President Washington that : "The basis of our political systems is the right of the people to make and alter their constitution of government." They found Justice Wilson's statement that the people "always retain the right of abolishing, altering, or amending their constitution, in whatever manner they shall deem expedient,"(12) and that " the people may change their constitution whenever and however they please."(13) Mr. Justice Iredell is quoted as affirming that "those in power are servants and agents; the people, without their consent, may new-model the government whenever they think proper."(11) As a further list of authorities, the Bills of Rights of the various States were drawn upon. Twenty of the twenty-five State constitutions declared that sovereignty lay in the people, and that they had the right to change the government. Eight of these constitutions granted the people the right to alter the form of government "in such manner as they may think proper," or "as they may think expedient;" and Virginia specifically declared that "when any government shall be found in- adequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most con- ducive to the public weal."(15)
In commenting upon these authorities, it is hardly necessary to do more than call attention to the context to show that they had a different background and connection from that used in this contro- versy. The Declaration of Independence was an act of revolution, justified itself by grievances, and called for resistance to England as a deduction from the right of the people to alter their government : this is simply a statement of the right of revolution. In like man- ner, there is no authority, in the quotation from Washington, for the
THE ISSUE. 89
legal right of the people to alter their constitutions at will, without the consent of the existing government. Mr. Justice Wilson, in the passage from which the first quotation was taken, was criticis- ing Blackstone because of his opinion that the discussion of the right of revolution did not come under the province of law. He considered that though "revolution principles " are not recognized by the English constitution, yet the English constitution cannot destroy those principles; and he described the principle that the peo- ple "may change their constitution and government whenever they please " as a "revolution principle." (16) The other sentence quoted from Mr. Justice Wilson was taken from a speech in the Penn- sylvania convention which ratified the Constitution of the United States. The judge here desired to bring about this ratification, which could be the result of nothing but a revolution. There is nothing in the words of Mr. Justice Iredell to indicate that the right spoken of was not the right of revolution; the extract was taken from his speech in the North Carolina convention which ratified the Constitution of the United States. The Bills of Rights were, for the most part, patterned after the Declaration of Inde- pendence, and it was evidently the intention of their framers to leave to the people, besides the right to amend legally, the great moral right of revolution. An efficient answer to the assertion that this was considered to be a legal right in Virginia, at least, is shown by the fact that in that State, by her laws, (17) "those who may attempt to set up a constitution of government, without the permission of the Legislature, are guilty of treason, and are liable to be punished with death." (b)
(b) It is said that John Randolph, who opposed the insertion in the Virginia constitution of a elause regarding amendments, did so because he "desired to prevent any change for ages to come," declaring that " he would as soon interpolate the marriage ceremony with a clause provid- ing for a divorce." Elmer, Speech in the House of Representatives, Feb. 28, 1845, p. 6. -
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Having examined the state of public opinion in Rhode Island at the time of the great constitutional controversy, we are prepared to examine the legitimacy of Mr. Hallett's argument that "the right of the people to change, alter or abolish their government, in such manner as they please, is a right, not of force, but of sovereignty." It is not necessary to discuss here, at great length, the meaning and scope of the words "sovereign " and "sovereignty." Sov- ereignty lies in the people, associated into a body politic, in their political capacity; or, in other words, in those persons who possess the elective franchise. () The use of the sovereign power must be either regular, in accordance with the established rule, or irregular, in opposition to the established rule, or the constitution and laws. An irregular exercise of sovereignty would be a possibility, but, not being regular, it cannot be called legal and must be revolutionary. Revolutions may be of three kinds : (18) those causing war, like the contest of 1861-65; those that do not result in bloodshed, but which almost lead up to military encounters, such as the "Dorr Rebellion " proved to be; and those which are brought about so peaceably that the revolutionary character is not realized, as in the case of the adoption of the Constitution of the United States, and as would have been the case in Rhode Island in 1842, had the People's government quietly taken possession in the month of May.
(c) " The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legislative authority." Cooley, Constitutional Limitations, 6 Ed 39. "The word people itself presupposes association-for if you suppose a million of inhabitants congregated on a spot of earth ten miles square, they would not constitute a people," J. Q. Adams, The Social Compact, 7. " Sovereignty resides in the society or body politic; in the corporate unit re. sulting from' the organization of many into one, and not in the individuals constituting such unit, nor in any number of them as such, nor even in all of them, except as organized into a body politic and acting as such." Jameson, Constitutional Convention, $ 21. "As a practical fact the sovereignty is vested in those persons who are permitted by the Constitution of the State to exer- cise the elective franchise." Cooley, Constitutional Limitations, 6 Ed. 40.
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Mr. Hallett claimed " the right of sovereignty" by the negative argument that the Constitution of the United States nowhere recog- nized the right of revolution; but it may be answered that the con- stitution was formed in order to perpetuate a government without revolutions, to give a permanent and legal basis for the new order of things. The difficulty is in the word "right;" it is a moral right to revolt when the evils of a government are so great that revolution is less to be feared than the existing evils; but this is accomplished only by the breaking up of the whole legal system : it is idle to talk of a "constitutional right" to ignore the constitu- tion. Mr. Hallett's affirmative argument, like that put forward by the Rhode Island suffragists, is that such right is granted by the Declaration of Independence and various State Bills of Rights.
It would seem to be fair to conclude that the proposed People's Convention could not be legal or legitimate; it would not be a reg- ular exercise of the sovereignty, because it was to be held without law and in antagonism to the legal government of the State. Yet this conclusion does not exclude the possibility that the people of Rhode Island might be justified if it came to be shown that they supported the convention : it is not denied that they had the right of revolution. The suffragists could be justified in their action only through the claim. that they were inaugurating a peaceful revolu- tion, such as that made by the United States when it overthrew the Articles of Confederation and adopted the constitution in 1787-89. The Rhode Island movement in 1841 was plainly illegal and ille- gitimate.
The question remains whether it was justifiable, as was the change in the revolution of 1776 and the virtual, though peaceful, revolution in 1789. Many subsequent events must be described before a properly considered conclusion can be reached, but it can-
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not be gainsaid that the issue was between legality and revolution ; and the ethics of the question turn upon the query how far a revo- lution was justifiable in this particular case.
A peculiar difficulty must here again be noticed : Rhode Island had no legal means of amending the constitution. Hence, the question arose whether the General Assembly had any more legal right to summon a convention than had any other body. The suf- frage committee declared that there was " no constitutional mode of
amending the government except by the people at large."(19)
But
the general and self-justifying method to initiate a constitutional convention is by the legally appointed officials of the government ; and in Rhode Island, while the charter did not directly ordain that the legislature should summon a convention to propose a constitu- tion, yet it did indirectly grant the power, by authorizing the Gen- eral Assembly to make "new forms of government."
Again, the general implied powers of a legislative body, if no clause is found forbidding it, would include the right to call a con- vention, perhaps even to submit amendments for ratification. The practically uniform custom in the various States of the Union ought to have had its influence in Rhode Island; the precedents in the State itself had always upheld this legislative right of initiation of changes in the fundamental law; the action of the legislature in submitting the question of a convention to the people in IS21 and IS22, and even more the calls for a convention in 1824 and IS34, were at least indications of the general belief that this power be- longed to the General Assembly.
This question might be examined from a different point of view. Conditions had changed since the colonial charter was granted in 1663; then the colonists asserted that it was not amendable by the royal authority which gave it, and the crown would permit no
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amendment by the people of the colony. When, however, the col- ony became the State and the authority of royalty over the people of Rhode Island was overthrown, the Charter of 1663 lost its char- ter characteristics and only continued to be a form of government ; it was, after 1776, the fundamental law -the constitution of the State-and therefore could be amended or superseded in the usual way. That method was the initiatory action of the State legisla- ture. The fact that the charter contained no provision for its own amendment did not render the course of the suffrage party any the less illegitimate.
AUTHORITIES. - 1 Burke's Report, 403-404. 2 Burke's Report, 263, 414. 3 Burke's Report, 852. 4 Turner, Trial of Dorr, 55 ; Burke's Report, 946. 5 New Englander, I, 86. 6 Way- land, Affairs of Rhode Island, 7. " Pitman, Reply to Morton, 19. 8 Wayland, Affairs of Rhode Island, 21. 9 Channing, On the Duty of the Free State, II, 65, 69. 10 Pitman, Reply to Mor-
ton, 20, 21. 11 Henry Y. Cranston, Congressional Globe, I Sess., 28 Cong., 1843-44, X11, 364.
12 Wilson, Works, I, 17. 13 Wilson, Works, III, 293. 14 Elliott's Debates, IV, 9 ; Story, 4 Ed., I, 250. 15 Poore's Charters and Constitutions ; see, also, Jameson, Constitutional Conven- tions, $ 245 ; Burke's Report, 36-38. 16 Wilson, Works, I, 20-21. 17 Pitman, Reply to Morton,
20. 1S Jameson, Constitutional Conventions, $ 109. 19 Burke's Report, 270.
CHAPTER VIII.
THE CONVENTIONS.
A S the suffragists had decided to bring to an issue the right of the people to express their will, without regard to the sanction of the State authorities, the State Suffrage Com- mittee sent out its own summons for the People's Convention, setting Saturday, August 28, 1841, as the day for the holding of meetings to elect delegates: this would be three days before the official semi- annual election of Representatives, at which, under the vote of the Assembly, the freemen were to choose delegates to the Freemen's Convention. The suffragists thus plainly declared their intention to anticipate the action of the freemen. The inter- est in the proposed People's Convention declined during the sum- mer months, a natural result of the season; but hand -bills were posted in the various towns, calling attention to the approaching . day, and the suffrage leaders used every means to bring out the voters. The anti-suffragists showed a remarkable inability to real- ize the importance of the agitation; not until the day of the vote did the leading Newport newspaper note the call for the People's Convention, and then it gave expression to its lack of interest by remarking : " It is stated that the Constitution about to be framed by this convention will be presented to the General Assembly at
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their October session, with a petition for its adoption as the su- preme law of the State."(1)
The 2Sth of August was a rainy day; but 7,512 votes were cast, and all the towns chose delegates except Westerly, West Green- wich, and East Greenwich.(?) In Newport 584 votes were reported to have been cast, of which number 198 were given by freemen : (3) if this rate held good throughout the State, about 2,500 freemen had voted, or one - quarter of the legal voters, and about 4,600 non- freemen registered their desires for a convention, or less than half the number of non-freemen in the State. While the result sug- gested that it would not need much further agitation to prevail upon the freemen to grant a liberal constitution, the election had not the hoped-for presumption of expressing the will of the people, inasmuch as it did not show a clear majority, either of freemen or of non-freemen.
The persons nominated by the suffrage party, in the various towns, met with no opposition, so far as is known. Of the eigli- teen delegates from Providence, more than two- thirds were free- men, and at least five of the eight delegates from Newport were legal voters, and the proportion probably held good throughout the State. Five of these eighteen delegates from Providence were also chosen, on the following Tuesday, to represent the city in the Freemen's Convention. The six " Independent " candidates who were defeated by the suffragists were leading citizens of the city, such as Nehemiah R. Knight, governor from 1817 to 1820, and United States Senator from 1823 until 1841; William G. Goddard, and William R. Staples. A spirited canvass took place in Provi- . dence over the choice of Representatives. Two had been nomi- nated by both parties for the contested places. John H. Clarke and Walter S. Burges received 512 and 504 votes respectively,
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while their opponents polled but 430 and 383.(1) The success of the suffrage freemen in Providence indicated the effects of the " Campaign of Education."
The People's Convention met as directed, Monday, October 4th, 1841, and was organized for business by four o'clock on Tuesday afternoon. By the following Saturday they had completed a consti- tution, and adjourned to meet again after the people had had time to examine the document and recommend changes. (5) The leading men in the convention were : Thomas W. Dorr, of Providence ; Dutee J. Pearce, of Newport; Ariel Ballou, of Cumberland; John R. Waterman, of Warwick; Joshua B. Rathbun, of Tiverton; Perez Simmons, of Providence; Palemon Walcott, of Smithfield; Dr. J. A. Brown, of Providence; and Samuel H. Wales, of Providence. (6) Interest in the sessions was slight, and the number of spectators was few ; and Mr. Dorr is quoted as saying that he was afraid that the adjournment would prove the death-blow to the constitution. In closing an editorial, the Providence Journal said : " It must be considered a curious spectacle, and one which no other country, if any other State, can present-a number of men assembled for the avowed purpose of overthrowing the government, under which they live, without any authority from the legislative or executive powers, and yet proceeding without opposition and without hindrance. The monstrous tyranny of the State government, which was so loudly de- nounced, was not displayed on that occasion."
The convention met again, by adjournment, on November 15th, and entirely completed its labors on the 1Sth. A few alterations in the text of the constitution were made, and it was ordered to be submitted to the people.(7) Perhaps the most notable feature of this session was the carefully prepared address of S,ooo words de- livered by Mr. Dorr, on the right of the people of Rhode Island
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to form a constitution. Ostensibly offered in response to a query whether a majority of the qualified freeholders was deemed requisite
THOMAS W. DORR.
( FROM AN ENGRAVING OF A DAGUERREOTYPE MINIATURE BY A. L. DICK.)
for the adoption of the People's Constitution, the speech reviewed the whole question, brought up all the arguments for the right of
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the people to make a constitution at will, without the request or consent of the legislature, and closed by answering the query as follows : " The freeholders are a part of the people, though not the whole people; and we are happy to find the liberal portion of them going along with us in this good work. Our ticket is so formed that every voter will respond to the question whether he be quali- fied under the existing laws or not. A majority of the freeholders is not necessary to our success; but it will be gratifying to find them on the right side."(8)
Leaving the discussion of the constitution framed by the People's Convention until it may be compared with the Freemen's Constitu- tion, which was promulgated a few days later, it is necessary here to note the controversy over the limitation of the right of suffrage to "every white male citizen." (9) The questions of abolition and of the privileges that should be granted to free negroes caused much trouble both in and out of the convention, and as early as the middle of September, communications began to appear in the newspapers concerning the right of the negroes to vote.(10) Before the conven- tion acted, a remonstrance was presented by a "committee in behalf of the people of color," holding that disfranchisement simply from " the existence of the fact color " was unjustifiable; but no attention was paid to the remonstrance, and a few days later a proposition to strike out the word " white " received but eighteen votes out of a . total of about a hundred.(11) At the November session of the con- vention, a communication was received from the Rhode Island Anti- Slavery Society asking permission to be heard in opposition to the insertion of the word "white." The convention laid the letter on the table, and though permission was accorded to "any citizen of the State" to address them on the propriety of striking it out, the word remained in the constitution. (12)
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The leaders of both parties were very careful not to permit themselves to lose any votes by a pronounced adherence to aboli- tionist principles, and doubtless felt that it would be better to postpone the question of negro suffrage until after the adoption of the constitution. Hence the word " white" remained in the second article; but, near the close of the constitution, a section was in- serted, which read as follows : " The General Assembly shall, at their first session after the adoption of this constitution, propose to the electors the question whether the word 'white,' in the first line of the first section of article 2 of the constitution, shall be stricken out. The question shall be voted upon at the succeeding annual election ; and if a majority of the electors voting shall vote to strike out the word aforesaid, it shall be stricken from the con- ยท titution ; otherwise not."(13) The suffrage party thus permitted an early vote upon it, without the complicated method of adoption which other amendments to the constitution must undergo ; and, as a further concession to the negroes and the abolitionists, the constitution exempted those who were excluded from voting, be- cause of their color, from taxation and military duty.(11)
The official Freemen's Convention met, in accordance with the call, Monday, November ist, 1841. It proceeded with its work slowly and with deliberation, and was not hastened by the action of the People's Convention. The Providence Journal said: " The Convention was called before that of the Suffrage Associations, and without any reference to that movement; we think it is clearly the duty of the members to ascertain in good faith the objects for which they were chosen, to make as good a Constitution as they can, and to submit it to the people. The views and wishes of the suffrage party should be regarded precisely as the views and wishes of any other respectable portion of our fellow citizens. Their opin-
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ions deserve all the consideration to which their weight may entitle them; their threats (of such as threaten) deserve none at all."(15) The convention remained in session two weeks: with regard to the suffrage, it had in mind only the desires and interests of the freemen, but apparently the delegates did not feel very clear as to what the freemen desired. Adjournment was secured to February, 1842, with several sections undecided upon : the reasons for post- ponement were evidently to obtain further instructions or ideas from their constituents, and to ascertain what the People's Conven- tion would do at its second session. The delegates left the matter of suffrage quite open, merely suggesting for future consideration a scheme of property qualification, excluding sons of freemen. (16)
The two conventions had met, and as a result two constitutions were before the people. As the two instruments are compared, it will be seen that each of them devoted its first article to a declara- tion of rights and privileges; the only sections in the Bill of Rights of the Freemen's Constitution not found in nearly identical terms in the People's Constitution are the freedom from imprisonment of debtors who had turned over their property; the privilege of the people to keep and bear arms; and the prohibition of slavery. Each constitution contained a clause relating to the suspension of the privilege of habeas corpus, the Freemen's adding that the authority of the General Assembly should be required for this pur- pose. On the other hand, we find in the People's Constitution declarations of democracy, representative government, and "soul liberty;" a full statement of the "self-evident truths" of the Declaration of Independence; a protest against the use of "favor or disfavor in legislation toward any man, party, society or relig- ious denomination ;" the right of "fugitive slaves" to a trial by jury; and a rule forbidding calling in question the religious belief
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of any witness. The more notable variation was the declaration, by the People's Constitution, of the right of the people to ordain and alter their government, and of the right of the jury, in crimi- nal cases, to judge the law as well as the fact. The absence of the clause forbidding slavery, and the attack upon the Fugitive Slave law, in the same document, are noteworthy.
In the suffrage article of the People's Constitution the right to vote was granted to "every white male citizen of the United States, of the age of twenty-one years, who had resided in this State for one year, and in any town, city, or district of the same for six months, next preceding the election at which he offers his vote."(10) By the preliminary suggestion of the Freemen's Convention, suf- frage was limited to the possessors of $134 worth of land, or of $500 worth of taxable personal property. By each constitution persons in the military, naval, or marine service of the United States were not considered as having acquired residence ; and pau- pers, lunatics, criminals, etc., were excluded. The People's Consti- tution also limited voting on questions of taxation to payers of a property tax. Each instrument required a strict regulation of voters, and exempted electors from arrest on days of election.
In the classification of the departments of government and the grant of legislative power there were few important points of divergence : the Freemen's Constitution retained for the General Assembly some judicial powers, and forbade lotteries in the State; the People's described the process by which a bill might become a law. (18)
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