Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
§ 94. RHODE ISLAND was originally settled by emigrants from Massachusetts, fleeing thither to escape from religious persecution; and it still boasts of Roger Williams as its founder, and as the early defender of religious freedom and the rights of conscience. One body of them purchased the island, which has given the name to the State, and another the territory of the Providence Plantations from the Indians, and began their settlements in both places nearly at the same period, viz. in 1636 and 1638.1 They entered into separate voluntary associations of government. But finding their associations not sufficient to protect them against the encroachments of Massachusetts, and having no title under any of the royal patents, they sent Roger Williams to England in 1643 to procure a surer foundation both of title and government. He succeeded in obtaining from the Earl of Warwick (in 1643) a charter of incorporation of Providence Plantations;2 and also, in 1644, a charter from the two houses of parliament (Charles the First being then driven from his capital) for the incorporation of the towns of Providence, Newport, and Portsmouth, for the absolute government of themselves, but according to the laws of England.3
§ 95. Under this charter an assembly was convened in 1647, consisting of the collective freemen of the various plantations.4 The legislative power was vested in a court of commissioners of six persons, chosen by each of the four towns then in existence. The whole executive power seems to have been vested in a president and four assistants, who were chosen from the freemen, and formed the supreme court for the administration of justice. Every township, forming within itself a corporation, elected a council of six for the management of its peculiar affairs, and for the settlement of the smallest disputes.5 The council of state of the Commonwealth soon afterwards interfered to suspend their government; but the distractions at home prevented any serious interference by parliament in the administration of their affairs; and they continued to act under their former government until the restoration of Charles the Second.6 That event seems to have given great satisfaction to these plantations. They immediately proclaimed the king, and sent an agent to England; and in July, 1663, after some opposition, they succeeded in obtaining a charter from the crown.7
§ 96. That charter incorporated the inhabitants by the name of the Governor and Company of the English Colony of Rhode Island and Providence Plantations in New England in America, conferring on them the usual powers of corporations. The executive power was lodged in a governor, deputy governor, and ten assistants, chosen by the freemen.8 The supreme legislative authority was vested in a general assembly, consisting of a governor, deputy governor, ten assistants, and deputies from the respective towns, chosen by the freemen, (six for Newport, four for Providence, Portsmouth, and Warwick, and two for other towns,) the governor or deputy and six assistants being always present. The general assembly were authorized to admit freemen, choose officers, make laws and ordinances, so as that they were “not contrary and repugnant unto, but as near as may be agreeable to, the laws of this our realm of England, considering the nature and constitution of the place and people; to create and organize courts; to punish offences according to the course of other corporations in England; ” to array the martial force of the colony for the common defense, and enforce martial law; and to exercise other important powers and prerogatives. It further provided for a free fishery on the coasts; and that all the inhabitants and children born there should enjoy all the liberties and immunities of free and natural subjects born within the realm of England. It then granted and confirmed unto them all that part of the king’s dominions in New England containing the Narraganset bay and the countries and parts adjacent, bounded westerly to the middle of Pawcatuck river, and so along the river northward to the head thereof, thence by a strait line due north, until it meet the south line of Massachusetts, extending easterly three English miles to the most eastern and northeastern parts of Narraganset bay, as the bay extendeth southerly unto the mouth of the river running towards Providence and thence along, the easterly side or bank of the said river up to the falls, called Patucket Falls, and thence in a strait line due north till it meets the Massachusetts line.9 The territory was to be holden as of the manor of East Greenwich in free and common soccage. It further secured a free trade with all the other colonies.
§ 97. But the most remarkable circumstance in the charter, and that, which exhibits the strong feeling and spirit of the colony, is the provision respecting religious freedom. The charter, after reciting the petition of the inhabitants, ” that it is much in their hearts, (if they be permitted,) to hold forth a lively experiment, that a most flourishing civil state may stand, and be best maintained, and that among our English subjects, with a full liberty in religious concernments, and that true piety, rightly grounded upon gospel principles, will give the best and greatest security to sovereignty,” proceeds to declare:10 ” We being willing to encourage the hopeful undertaking of our said loyal and loving subjects, and to secure them in the free exercise and enjoyment of all their civil and religious rights appertaining, to them as our loving subjects, and to preserve to them that liberty in the true Christian faith and worship of God, which they have sought with so much travel, and with peaceful minds and loyal subjection to our. royal progenitors and ourselves to enjoy; and because some of the people and inhabitants of the same colony cannot, in their private opinion, conform to the public exercise of religion according to the liturgy, form, and ceremonies of the Church of England, or take or subscribe the oaths and articles made and established in that behalf; and for that the same, by reason of the remote distances of these places, will, as we hope, be no breach of the unity and uniformity established in this nation, have therefore thought fit and do hereby publish, grant, ordain, and declare, that our royal will and pleasure is, that no person within the said colony, at any time hereafter, shall be any wise molested, punished, disquieted, or called in question for any differences in opinion in matters of religion; but, that all and every person and persons may, from time to time and at all time hereafter, freely and fully have and enjoy his and their own judgment and consciences in matters of religious concernment throughout the tract of land hereafter mentioned, they behaving themselves peaceably and quietly, and not using this liberty to licentiousness and profaneness, nor to the civil injury or outward disturbance of others.”11 This is a noble declaration and worthy of any prince, who rules over a free people. It is lamentable to reflect, how little it comports with the domestic persecutions authorized by the same monarch during his profligate reign. It is still more lamentable to reflect, how little a similar spirit of toleration was encouraged either by the precepts or example of any other of the New England colonies.
§ 98. Rhode Island enjoys the honour of having been if not the first, at least one of the earliest of the colonies, and indeed of modern states, in which the liberty of conscience and freedom of worship were boldly proclaimed among its fundamental laws.12 If at any time afterwards the state broke in upon the broad and rational principles thus established, it was but a momentary deviation from the settled course of its policy.13 At the present day, acting under this very charter, it continues to maintain religious freedom with all the sincerity and liberality and zeal, which belonged to its founder. It has been supposed, that in the laws passed by the general assembly first convened under this charter, (1664,) Roman Catholics were excluded from the privileges of freemen. But this has been very justly doubted; and indeed, if well founded, the act would deserve all the reproach, which has been heaped upon it.14 The first laws, however, declared, that no freeman shall be imprisoned, or deprived of his freehold, but by the judgment of his peers or the laws of the colony; and that no tax should be imposed or required of the colonists, but by the act of the general assembly.15
§ 99. It is said, that the general conduct of Rhode Island seems to have given entire satisfaction to Charles the Second during the residue of his reign.16 Upon the accession of James, the inhabitants were among the first to offer their congratulations; and to ask protection for their chartered rights. That monarch however disregarded their request. They were accused of a violation of their charter, and a quo warranto was filed against them. They immediately resolved, without much hesitation, not to contend with the crown, but to surrender their charter; and passed an act for that purpose, which was afterwards suppressed.17 In December; 1686, Sir Edward Andros, agreeably to his orders, dissolved their government, and assumed the administration of the colony. The revolution of 1688 put an end to his power; and the colony immediately afterwards resumed its charter, and, though not without some interruptions, continued to maintain and exercise its powers down to the period of the American Revolution.18 It still continues to act under the same charter as a fundamental law, it being the only state in the Union, which has not formed a new constitution of government. It seems, that until the year 1696 the governor, assistants, and deputies of the towns sat together. But by a law then passed they were separated, and the deputies acted as a lower house, and the governor and assistants as an upper house.19
§ 100. In reviewing the colonial legislation of Rhode Island some peculiarities are discernible, though the general system is like that of the other parts of New England.20 No persons but those, who were admitted freemen of the colony, were allowed to vote at elections, and they might do it in person or by proxy; and none but freemen were eligible to office. Wills of real estate were required to have three witnesses. The probate of wills and the granting of administrations of personal estate were committed to the jurisdiction of the town councils of each town in the colony, with an appeal to the governor and council as supreme ordinary.21 Every town was a corporate body, entitled to choose its officers, and to admit persons as freemen.22 Sports and labour on Sunday were prohibited.23 Purchases of land from the Indians were prohibited.24 By a formal enactment in 1700 it was declared, that in all actions, matters, causes, and things whatsoever, where no particular law of the colony is made to decide and determine the same, then in all such cases the laws of England shall be put in force to issue, determine, and decide the same, any usage, custom, or law to the contrary notwithstanding.25 About the same period the English navigation laws were required, by an act of the colonial legislature, to be executed.26 Twenty years’ peaceful possession of lands under the claim of a title in fee simple was declared to give a good and rightful title to the fee;27 and thus a just and liberal effect was given to the statute of limitations, not as a bar of the remedy, but of the right. The acknowledgment and registration of conveyances of lands in a public town registry were provided for. The support of the ministry was made to depend upon free contributions. appeals to the king in council, in cases exceeding 300 in value, were allowed.28 A system of redress in cases of abuses of property devoted to charitable uses was established;29 fines and common recoveries were regulated; and the trial by jury established. The criminal code was not sanguinary in its enactments; and did not affect to follow the punishments denounced in the Scripture against particular offences.30 Witchcraft, however, was, as in the common law, punished with death. At a later period, lands of persons living, out of the colony or concealing themselves therein were made liable to the payment of their debts.31 In respect to the descent of real estates, the canons of the common law were adopted, and the eldest son took the whole inheritance by primogeniture. This system was for a short period repealed by an act, (4 & 5 George 1, 1718,) which divided the estate among all the children, giving the eldest son a double share.32 But the common law was soon afterwards (in 1728) reinstated by the public approbation, and so remained to regulate descents until a short period (1770) before the Revolution. Contracts for things above the value of ten pounds were required to be in writing; and conveyances in fraud of creditors were declared void. And we may also trace in its legislation provision respecting, hue and cry in cases of robbery; and of forfeiture in cases of accidental death by way of deodand.33
§ 101. We have now finished our review of all the successive colonies established in New England. The remark of Chalmers is in general well founded: “Originally settled (says he34) by the same kind of people, a similar policy naturally rooted in all the colonies of New England. Their forms of government, their laws, their courts of justice, their manners, and their religious tenets, which gave birth to all these, were nearly the same.” Still, however, the remark is subject to many local qualifications. In Rhode Island, for instance, the rigid spirit of puritanism softened down (as we have seen) into general toleration. On the other hand the common law rules of decents were adhered to in i s policy with singular zeal down to the year 1770, as necessary to prevent the destruction of family estates, while the neighbouring colonies adopted a rule, dividing the inheritance among all the children.35
§ 102. One of the most memorable circumstances in the history of New England is the early formation and establishment of a confederation of the colonies for amity, offence, and defence, and mutual advice and assistance. The project was agitated as early as 1637; but difficulties having occurred, the articles of union were not finally adopted until 1643.36 In the month of May of that year the colonies of Massachusetts, Connecticut, New Haven, and Plymouth formed a confederacy by the name of the United Colonies of New England, and entered into a perpetual league of friendship and amity for offence and defence and mutual advice and succour. The charges of all wars, offensive and defensive, were to be borne in common and according to an apportionment provided for in the articles; and in case of invasion of any colony the others were to furnish a certain proportion of armed men for its assistance.37 Commissioners appointed by each colony were to meet and determine all affairs of war and peace, leagues, aids, charges, etc. and to frame and establish agreements and orders for other general interests. This union, so important and necessary for mutual defence and assistance during the troubles, which then agitated the parent country, was not objected to by King Charles the Second on his restoration; and with some few alterations it subsisted down to 1686, when all the charters were prostrated by the authority of King James.38 Rhode Island made application to be admitted into this Union; but was refused upon the ground, that the territory was within the limits of Plymouth colony. It does not appear that subsequently the colony became a party to it.39
1. 1 Hutch. Hist. 12, 1 Holmes’s Annals, 225, 233, 246; 1 Chalm. Annals, 269, 270; 3 Hutch. Coll. 413, 414, 415; Marsh. Colon. ch. 3, p. 99; Robertson’s America, B. 10; 2 Doug. Summ. 76, to 90; 1 Pitkin’s Hist 46; 2 Doug. Summ. 76 to 77; — Mr. Chalmers says that Providence was settled in the beginning of 1635; and Dr. Holmes, in 1636. (1 Chalm. Annals, 270; 1 Holmes’s Annals,233.)
2. 1 Hutch. Hist. 30, note; Walsh’s Appeal, 429; 1 Pitk. Hist. 46, 47, 48; 2 Doug. Summ. 80.
3. 1 Chalm. 271, 272; 3 Hutch Coll. 415, 416.
4. 1 Chalm. Annals, 273; 1 Holmes’s Annals, 283; Walsh’s Appeal, 429; 2 Doug. Summ. 80.
5. 1 Chalm. Annals, 273; 1 Holmes’s Annals, 283.
6. 1 Chalm. Annals, 274; 1 Holmes’s Annals, 297; Marsh. Colon. ch. 5, p. 133
7. 1 Chalm. Annals, 274; Holmes’s Annals, 329.
8. 2 Haz. Coll. 62 to 623; 2 Doug. Summ. 81
9. This is the substance but not the exact words of the boundaries in the charter, which is given at large in 2 Haz. Coll. 612 to 623, and in Rhode Island Laws, editions of 1789 and 1822.
10. 2 Haz. Coll. 613.
11. 2 Haz. Coll. 613.
12. Walsh’s Appeal, 429.
13. 3 Hutch. Coll. 413, 415; 1 Chalm. Annals, 276, 284; 1 Holmes’s Annals, 336.
14. On this subject, see I Chalmers’s Annals, 276, 284; and Doctor Holmes’s valuable note to his Annals, vol.l. p. 336, and Id. p. 341; 3 Hutch. Coll. 413, 415; Walsh’s Appeal, 429 to 435.
15. 1 Chalm. Annals, 276; 1 Holmes’s Annals, 336; R. Island Colony Laws, (1744,) p. 3.
16. 1 Chalm. Annals, 278.
17. 1 Chalm. Annals, 280, 281; 2 Doug. Summ. 85.
18. 1 Chalm. Annals, 278, 279; 1 Holmes’s Annals, 415, 420, 428, 442; 2 Doug. Summ. 85, 377; Dunmer’s Defence, 1 American Tracts, 7.
19. R. Island Colony Laws (1744), 24.
20. Id. p.1,147.
21. Id. p. 1,4.
22. R. Island Col. Laws (1744), p. 9.
28. Id.87, 133.
31. R. Island Colony Laws, (Edit. 1744) p. 192.
32. Colony Laws of Rhode Island, (Edit. 1719, printed at Boston), p. 95, 96.
33. Rhode Island Colony Laws (1719), p. 5, 8.
34. 1 Chalm. Annals,296.
35. Gardner v. Collins;2 Peters’s Sup. Rep. 58.
36. 1 Holmes’s Annals, 269, 270; 1 Winthrop’s Jour. 237, 284.
37. 2 Haz. Coll. 1 to 6; 2 Winthrop’s Jour. 101 to 106; 1 Hutch. Hist 124, 126.
38. 1 Holmes’s Annals, 270 and note; 1 Hutch. Hist. 126 note; 2 Haz. Coll. 7 et seq.
39. 1 Holmes’s Annals, 287 and note; 1 Hutch. Hist. 124; 2 Haz. Coll. 99, 100.