CH. VIII.] RHODE ISLAND. 81
§ 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, New-
82 HISTORY OF THE COLONIES. [BOOK I.
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 say, 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.
port, and Portsmouth, for the absolute government of themselves, but
according to the laws of England.1
§ 95 Under this charter an assembly was convened in 1647, consisting of
the collective freemen of the various plantations.2 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.3 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.4 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.5
§ 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
CH. VIII] RHODE ISLAND. 83
1 1 Chalm. 271, 272; 3 Hutch Coll. 415, 416.
2 1 Chalm. Annals, 273; 1 Holmes's Annals, 283; Walsh's Appeal, 429; 2
Doug. Summ. 80
3 1 Chalm. Annals, 273; 1 Holmes's Annals, 283.
4 1 Chalm. Annals, 274; 1 Holmes's Annals, 297; Marsh. Colon. ch. 5,
5 1 Chalm. Annals, 274; Holmes's Annals, 329.
usual powers of corporations. The executive power was lodged in a
governor, deputy governor, and ten assistants, chosen by the freemen.1 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
84 HISTORY OF THE COLONIES. [BOOK I.
1 2 Haz. Coll. 62 to 623; 2 Doug. Summ. 81
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 meetsthe Massachusetts line.1 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:2 " 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
CH. VIII.] RHODE ISLAND. 85
1 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.
2 2 Haz. Coll. 613.
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."1 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.2 If at any time
86 HISTORY OF THE COLONIES. [BOOK I.
1 2 Haz. Coll. 613.
2 Walsh's Appeal, 429.
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.1 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.2 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.3
§ 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.4 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
CH. VIII] RHODE ISLAND. 87
1 3 Hutch. Coll. 413, 415; 1 Chalm. Annals, 276,284; 1 Holmes's Annals, 336.
2 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.
3 1 Chalm. Annals, 276; 1 Holmes's Annals, 336; R. Island Colony Laws,
(1744,) p. 3.
4 1 Chalm. Annals, 278.
their charter; and passed an act for that purpose, which was afterwards
suppressed.1 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.2 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.3
§ 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 NewEngland.4 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.5
1 1 Chalm. Annals, 280, 281; 2 Doug. Summ. 85.
2 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.
3 R. Island Colony Laws, (1744,) 24.
4 Id. p.1,147.
5 Id. p. 1,4.
88 HISTORY OF THE COLONIES. [Book I.
Every town was a corporate body, entitled to choose its officers, and to
admit persons as freemen.1 Sports and labour on Sunday were prohibited.2
Purchases of land from the Indians were prohibited.3 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.4 About the same period the English
navigation laws were required, by an act of the colonial legislature, to be
executed.5 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;6 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.7 A system of redress in cases of
abuses of property devoted to charitable uses was established;8 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.9 Witchcraft, however, was, as in the common law, punished with
death. At a later period, lands of persons living, out of the colony or
CH. VIII.] RHODE ISLAND. 89
1 R. Island Col. Laws,(1744,) p. 9.
cealing themselves therein were made liable to the payment of their debts.1
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.2 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.3
§ 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 he4) 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
90 HISTORY OF THE COLONIES. [BOOK I.
1 R. Island Colony Laws, (Edit. 1744) p. 192.
2 Colony Laws of Rhode Island, (Edit. 1719, printed at Boston,) p. 95, 96.
3 Rhode Island Colony Laws, (1719,) p. 5, 8.
4 1 Chalm. Annals,296.
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.1
§ 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
1643.2 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 NewEngland, 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.3 Commissioners appointed by
each colony were to meet and determineall affairs of war and peace,
leagues, aids, charges, &c. 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
CH. VIII.] RHODE ISLAND. 91
1 Gardner v. Collins;2 Peters's Sup. Rep. 58.
2 1 Holmes's Annals, 269,270; 1 Winthrop's Jour. 237,284.
3 2 Haz. Coll. 1 to 6; 2 Winthrop's Jour. 101 to 106; I Hutch. Hist
and with some few alterations it subsisted down to 1686, when all the
charters were prostrated by the authority of King James.1 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.2
1 1 Holmes's Annals, 270 and note; 1 Hutch. Hist.126 note; 2 Haz. Coll.
7 et seq.
2 1 Holmes's Annals, 287 and note; 1 Hutch Hist. 124; 2 Haz. Coll. 99, 100.