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2020 | OriginalPaper | Chapter

Rhode Island

Authors : Peter J. Galie, Christopher Bopst, Bethany Kirschner

Published in: Bills of Rights Before the Bill of Rights

Publisher: Springer International Publishing

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Abstract

This chapter provides a brief overview of the founding of the colony by Roger Williams, who viewed the colony in the same way William Penn viewed Pennsylvania: as a refuge for persecuted religious dissidents. It then focuses on the colony’s tradition of rights. The impact of its founder, Roger Williams on its representative political institutions and its expansive understanding of religious liberty is pronounced. It is one of two colonies-the other Connecticut—that did not adopt a home grown constitution. The liberality of their colonial charter led them to preserve it as their governing document following independence. The actions of the 1790 state ratifying convention, and the declaration of rights it generated, are examined in detail.

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Footnotes
1
Providence Agreement (1637), in Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund, 1998), 161–162.
 
2
The Providence Agreement foreshadowed fundamental principles that would provide the foundations for the republican constitutions adopted by former colonies in the wake of the Declaration of Independence.
 
3
The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002), 46.
 
4
Colonial Rhode Island: A History (New York: Charles Scribner’s Sons, 1975), 13.
 
5
James, Colonial Rhode Island, 1.
 
6
John P. Kaminski, “Democracy Run Rampant: Rhode Island in the Confederation,” in The Human Dimensions of Nation Making: Essays on Colonial and Revolutionary America, ed. James Kirby Martin (Madison: State Historical Society of Wisconsin, 1976), 244–246.
 
7
A more detailed examination of the evolution of government structures in Rhode Island is provided by Sydney V. James, “Rhode Island: From Classical Democracy to British Province,” Rhode Island History 43, no. 4 (November 1984): 119–127.
 
8
[Organization of the Government of Rhode Island] (1642), in Lutz, Colonial Origins, 173.
 
9
Samuel Greene Arnold, History of the State of Rhode Island and Providence Plantations, 4th ed. (Providence: Preston & Rounds, 1899), 1:148.
 
10
It was a patent granted by Parliament rather than a royal charter because Charles I had been forced to flee London.
 
11
Patent for Providence Plantations (1643), in Thorpe, Constitutions, 6:3210.
 
12
Acts and Orders of 1647, in Lutz, Colonial Origins, 185.
 
13
John Russell Bartlett, ed., Records of the Colony of Rhode Island and Providence Plantations, in New England (Providence: A. Crawford Greene and Brother, 1856), 1:148–149. These procedures were repealed in 1650 and 1664. Ibid., 228–229; see also page 27 of volume two of that work.
 
14
Bartlett, Records of the Colony, 1:157.
 
15
Ibid., 198–200. In March 1668/1669, a law was enacted allowing indictees aid of an attorney “to plead any poynt of law that may make for the clearing of his innocencye.” Bartlett, Records of the Colony, 2:239.
 
16
Bartlett, Records of the Colony, 1:158.
 
17
Ibid., 190. The same laws also allowed those of “different consciences” to affirm rather than swear an oath. Ibid., 181.
 
18
Roger Williams, Bloudy Tenent of Persecution for Cause of Conscience (Macon, GA: Mercer University Press, 2001 [1644]), 154–155.
 
19
Bartlett, Records of the Colony, 1:167.
 
20
Ibid., 181.
 
21
Ibid., 229.
 
22
David S. Lovejoy, Rhode Island Politics and the American Revolution, 1760–1776 (Providence: Brown University Press, 1958), 69.
 
23
Charter of Rhode Island and Providence Plantations (1663), in Thorpe, Constitutions, 6:3220.
 
24
Ibid., 3212.
 
25
Ibid., 3213.
 
26
Ibid., 3212.
 
27
Ibid., 3213.
 
28
Ibid., 3211.
 
29
Antinomians held the moral law “not binding upon Christians, who are under the law of grace.” David D. Hall, ed., The Antinomian Controversy, 1636–1638: A Documentary History, 2d ed. (Durham, NC: Duke University Press, 1990), 3.
 
30
This animus toward Catholics derived from the religious divisions unleashed by the Reformation. Protestant reformers identified Catholicism with support of monarchical government, allegiance to a foreign power (papacy), and the Inquisition. For reformed Protestants—Congregationalists and Presbyterians—there would be no Lords—spiritual or temporal. By 1798, the religious test was completely removed.
 
31
Charter of Rhode Island and Providence Plantations, 3213.
 
32
Ibid., 3219, 3221.
 
33
Ibid., 3216.
 
34
Ibid., 3215.
 
35
Bartlett, Records of the Colony, 2:113.
 
36
Patrick T. Conley, “Rhode Island: Laboratory for the ‘Lively Experiment’,” in The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties, ed. Patrick T. Conley and John P. Kaminski (Madison, WI: Madison House, 1992), 144. Although scholarly assessments differ on the percentage of individuals meeting the eligibility requirement, one statistic showed that by 1760, upwards of 75 percent of male inhabitants were eligible to vote. See the detailed analysis and studies cited by Patrick T. Conley, Democracy in Decline: Rhode Island’s Constitutional Development, 1776–1841 (Providence: Rhode Island Historical Society, 1977), 49.
 
37
Bartlett, Records of the Colony, 2:112–113.
 
38
Ibid., 144.
 
39
Sydney V. James, “Colonial Rhode Island and the Beginnings of the Liberal Rationalized State,” in Essays in Theory and History: An Approach to the Social Sciences, ed. Melvin Richter (Cambridge, MA: Harvard University Press, 1970), 170.
 
40
Conley, “Rhode Island: Laboratory for the ‘Lively Experiment’,” 131.
 
41
Ibid., 144. Conley chronicles the confused provenance of this provision:
The statute was allegedly passed in the March 1663 session of the General Assembly. Its enactment then or at any time prior to 1719 is possible but highly improbable. No such statute appears in the original proceedings of the General Assembly for 1663, nor is it found in the preserved proceedings of any subsequent session.
“The Digest of 1798-The State’s First Code of Law,” Law Day Address delivered to Rhode Island Supreme Court, May 1998 (copy provided by Professor Conley). Nonetheless, as Conley concedes, the statute was reaffirmed three times between 1730 and 1767. Similar measures aimed at limiting full civil rights or limiting the right to hold office to Protestants appeared in numerous state constitutions adopted between 1776 and 1790. See Table 4, pp. 76–78.
 
42
Conley, “Rhode Island: Laboratory for the ‘Lively Experiment’,” 131.
 
43
As quoted in Conley, “Rhode Island: Laboratory for the ‘Lively Experiment’,” 146.
 
44
Conley describes these measures in more detail. Ibid., 147–150.
 
45
Jay Coughtry, The Notorious Triangle: Rhode Island and the African Slave Trade, 1700–1807 (Philadelphia: Temple University Press, 1981).
 
46
Patrick T. Conley provides insightful analysis of the case in “Rhode Island’s Paper Money Issue and Trevett v. Weeden (1786),” Rhode Island History 30, no. 2 (Summer 1971): 95–108. Other courts would soon take that step. By the end of the eighteenth century, state courts were asserting the power to judge the constitutionality of government actions. See Scott Douglas Gerber’s monograph, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606–1787 (New York: Oxford University Press, 2011), wherein he argues that assertions of the power of judicial review were more likely to be made in states with the strongest commitment to judicial independence.
 
47
Center for the Study of the American Constitution, University of Wisconsin-Madison, “The Rhode Island State Referendum on the Constitution,” https://​csac.​history.​wisc.​edu/​states-and-ratification/​rhode-island/​referendum/​, accessed December 13, 2019.
 
48
The Constitution became effective on June 21, 1788, upon ratification by the ninth state, New Hampshire.
 
49
John P. Kaminski, et al., eds., The Documentary History of the Ratification of the Constitution, vol. 26, Ratification of the Constitution by the States: Rhode Island (3) (Madison: Wisconsin Historical Society Press, 2013), 996.
 
50
Preamble to Drafting Committee’s Report, quoted in Kevin D. Leitao, “Rhode Island’s Forgotten Bill of Rights,” Roger Williams Law Review 1, no. 1 (Spring 1996): 44.
 
51
Kaminski, Ratification of the Constitution by the States: Rhode Island (3), 997–1000.
 
52
Ibid., 999.
 
53
The rejected amendment concerned congressional pay. It became the Twenty-Seventh Amendment in 1992. Rhode Island ratified the remaining eleven amendments, ten of which were ratified by the requisite number of states in 1791, and subsequently became known as the “Bill of Rights.”
 
54
Some state ratifying bodies did not even consider the twelve amendments as a package. Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788 (New York: Simon & Schuster, 2010), 460–461.
 
55
These amendments are available in Kaminski, Ratification of the Constitution by the States: Rhode Island (3), 1000–1002.
 
56
Leitao, “Rhode Island’s Forgotten Bill of Rights,” 34–35. The leading student of Rhode Island’s constitutional history, Patrick T. Conley, calls Leitao’s conclusion “faulty.” Patrick T. Conley and Robert G. Flanders Jr, The Rhode Island State Constitution (New York: Oxford University Press, 2011), 309. Conley interprets the convention’s action as follows:
This declaration was clearly an expression of concern by the ratifying convention's Antifederal majority to the United States Congress regarding the threat to liberty posed by the new government of the United States. A textual and contextual analysis of the document can yield no other conclusion. No one at that time or since considered it otherwise, and the General Assembly (which never ratified the 1790 declaration) neither included it in the public laws nor based its 1798 statutory bill of rights upon it. The Declaration of Rights did indeed apply to the “people of the state,” but it was intended to protect them not from their local officials but from the novel and distant central government whose potential appetite for power was then unknown.
Conley, “Digest of 1798.” How the declaration would accomplish this is not clear. If Professor Conley is correct, the declaration was a cri di coeur from a colony facing draconian retribution from the national government if it failed to ratify the Constitution.
 
57
Leitao, “Rhode Island’s Forgotten Bill of Rights,” 32.
 
58
The Public Laws of the State of Rhode-Island and Providence Plantations (Providence: Carter & Wilkinson, 1798), 75.
 
59
Ibid., 79–81.
 
60
Ibid., 78.
 
61
Ibid., 82.
 
62
This declaration of rights, the last one proposed by a state government prior to ratification of the national Bill of Rights, epitomized the rights tradition found in the declarations of rights adopted by the states between 1776 and 1790. It is available in Kaminski, Ratification of the Constitution by the States: Rhode Island (3), 997. Taken almost entirely from amendments proposed to the U.S. Constitution by the Virginia Ratifying Convention, the Rhode Island declaration does not include any rights that had not previously appeared in earlier state declarations.
 
63
Similar to Amendment 1 proposed to the U.S. Constitution by the Virginia Ratifying Convention, June 27, 1788 (Va. Ratifying Conv.). The amendments proposed by the Virginia ratifying convention can be found online at: http://​www.​let.​rug.​nl/​usa/​documents/​1786-1800/​the-anti-federalist-papers/​amendments-proposed-by-the-virginia-convention-(june-27-1788)-.​php.
 
64
Similar to Va. Ratifying Conv., amend. 2.
 
65
Similar to Ratification of the Constitution by the State of New York; July 26, 1788. The detailed limits on any congressional power and the assertion of states’ rights targeted the enumerated powers of the national Constitution. Prohibiting the federal government from taking certain action did not imply that it would be able to take other actions not so limited. Since the national government was a government of enumerated powers, powers not enumerated would be beyond its legal authority. States did not think this limitation, standing alone, would suffice, thus Article 3. If it were meant to be part of the state law, as Leitao argues, its effect would have been largely symbolic, as the Supremacy Clause would take precedence.
 
66
Similar to Va. Ratifying Conv., amend. 20.
 
67
Verbatim from Va. Ratifying Conv., amend. 5. Article 5 tracked provisions mandating separation of powers and term limits found in other state constitutions.
 
68
Verbatim from Va. Ratifying Conv., amend. 6. Articles 6 and 7 institutionalized the state’s commitment to popular sovereignty and defined the requirements for membership in the body politic.
 
69
Similar to Va. Ratifying Conv., amend. 7.
 
70
Similar to Va. Ratifying Conv., amend. 8.
 
71
Similar to Va. Ratifying Conv., amend. 9.
 
72
Similar to Va. Ratifying Conv., amend. 10.
 
73
Similar to Va. Ratifying Conv., amend. 11.
 
74
Similar to Va. Ratifying Conv., amend. 12.
 
75
In using “cruel or unusual punishment” rather than “cruel and unusual punishment,” Rhode Island followed North Carolina (Decl. 1776, Art. X) and Maryland (Decl. 1776, Art. XXII), deviating from Va. Ratifying Conv., amend. 13.
 
76
Similar to Va. Ratifying Conv., amend. 15.
 
77
Similar to Va. Ratifying Conv., amend. 14.
 
78
Similar to Va. Ratifying Conv., amend. 16.
 
79
Similar to Va. Ratifying Conv., amends. 17 and 18.
 
80
Similar to Va. Ratifying Conv., amend. 19.
 
Metadata
Title
Rhode Island
Authors
Peter J. Galie
Christopher Bopst
Bethany Kirschner
Copyright Year
2020
Book
Bills of Rights Before the Bill of Rights

Print ISBN: 978-3-030-44300-9

Electronic ISBN: 978-3-030-44301-6

Copyright Year: 2020

DOI
https://doi.org/10.1007/978-3-030-44301-6_17