ENSHRINED IDEALS: RHODE ISLANDS CHARTER IN THEORY & PRACTICE, FROM BIRTH TO STATEHOOD.

Tracy Jonsson

The concept of separation of church and state is fundamental to American identity; it is etched deeply into our communal disposition and present in our national documents. The Constitution and its first amendment rights affect our interaction with theocratic governments around the world, our interaction with each other nationally, and our entitlement to free speech and religious practice. One might assume that this language was developed on the eve of the Revolution as a way to rein in the power of a federal government, but it was in fact in the 17th Century colony of Rhode Island and Providence Plantations that a separation-of-church-and-state policy was first introduced to American life. Ahlquist v. Cranston, a Supreme Court case in 2012, has recently brought the little state of Rhode Island back into the debate over the meaning of this concept by questioning the right of a high school in Cranston to exhibit a prayer banner in its auditorium. Ms. Ahquist, a student at the high school, argued that this banner had infringed on the establishment clause of the First Amendment, and the court ruled in her favor. The legal case, in combination with the 350th Anniversary of the document in 2013, has reawakened interest in the Rhode Island Charter of 1663: one of the earliest government documents anywhere defining the wall of separation between church and state. The phrases Religious Toleration and Lively Experiment are synonymous with Rhode Island, as the inclusion of these phrases in the Charter allowed the Colony to become the first royally sanctioned secular government in North America.1 It also is because of these words that the Charter occupies a place in our contemporary debate, while the majority of obsolete colonial charters have fallen out of memory. It is the importance of the Rhode Island Charter of 1663 in the political discussion that is central to this article. Contemporary associations are easily accessed, but the relevancy and placement of this document in debates after its ratification allow for a more rounded understanding

1 Charles Smull Longacre, Roger Williams: His Life, Work, and Ideals (Washington, DC: Takoma Park, 1939), 1867.

of the importance of the Charter over time and, in many ways, the climate and priorities of those evoking it. In the interest of gaining historical understanding it is useful to study the Rhode Island Charter of 1663 first against other contemporary charters and then through the published materials of their respective time periods, view it through lenses of the 17th Century and Revolutionary Era. COLONIAL CHARTERS: A BACKGROUND Multiple charters, grants and patents were issued by the British monarchs James I, Charles I, Charles II, James II, William and Mary, Anne and George I in the process of exploring and settling the North American continent.2 It was understood that the sovereign was the immediate owner and lord of the soil and exercised unlimited power in the disposition of it.3 The Monarch disposed of land by enabling companies or groups to establish local governments, and conferred powers of legislation on the grantees.4 The entrusting of land, the granting of powers of legislation and government, and the incorporations of companies were made legally official in documents called charters. Essentially land deeds, charters always included the standardized language of property ownership: the right of the Sovereign to include found land under the Crowns dominion, the allocation of 1/5 of all precious metals and ores found on new land to be paid to the Crown in return for the Crowns benevolence, the complete exclusion of any feudalist arrangement regarding land found, the right of the exploring party or company to all non-mineral natural resources discovered, and the organization of government overseeing its management. This last component frequently varied based on who was investing in a venture. In addition, charters always outlined the land it was deeding, and sometimes included a description of the group or person receiving it. By the 1630s charters had already developed to include many different political and contextual situations. Some were given to individuals and allowed for despotic rule as needed in
2 Robert Baird, Religion in America (NY: Harper, 1844), 28. 3 Melville Egleston, The Land System of the New England Colonies (MD: John Hopkins University,1886), 7. 4 Ibid, 7.

unknown and unchartered lands; some created companies with management capabilities under Crown scrutiny; and some founded companies with their own, relatively autonomous, body politic. This latter was the case with the Virginia Companies of London and Plymouth, chartered in 1606 and given the entire North American seaboard. After finding it generally unsuccessful to attempt government from seats in England, corporations shifted to governing themselves at the sites of their colonies by offering smaller patents to adventurous groups to represent them and provide a return on investment. Equipped with patents using similar language to the charters founding the large companies, the patentees would set out with a stake in the economic success of a new colony: a business model we call franchising today. A group would sail, patent in hand, to settle land within the jurisdiction of the then called Massachusetts Colony for example. Once there they would organize around town settlement agreements called compacts. These compacts, composed by the settlers, could include values important to the group. The famous Mayflower Compact of 1620, which established the use of compacts in New England, was simply an agreement to create a town government, develop laws, and a promise to abide by them. It responded to the local context of mutinous sentiments on the ship, while the Pilgrims were still in transit. It was in this manner that the Massachusetts Bay Company populated its land holdings and that the theocratic governments of that region were established. A significant adaptation in government dynamics occurred when population density became high enough to facilitate religious and economic splintering, conflict or expulsion. Groups that left the jurisdiction of established colonies would also organize themselves around compact agreements, and would insert the values and moral structures they found important to the success of their settlements. These governments would not be recognized, and landownership rights would remain dubious, unless they themselves petitioned successfully for a charter land deed from the English

Crown. Thus began the practice of charter petitioning by recently established settlements for postsettlement charters. The Colony of Connecticut received its charter in 1662 and, much like the Rhode Island Charter, it included directions for a democratic government and processes for election. It also, like most other charters before and after it, lacked any notable value statements. In contrast, the unusual circumstances around the settlement of Rhode Island required value-based articulation. The Rhode Island Charter of 1663 is an extraordinary example of embedded compact agreement language, borrowed mainly from the founding document of the town of Providence. Providence had been settled by a group in keeping with a man named Roger Williams, a theologist who in 1635 had been labeled a religious non-conformist and been exiled from the Massachusetts Bay Colony. The compact that established the city of Providence in 1640 was between refugees who valued government based on free consent and the holding forth of liberty of conscience: the right to practice any or no religion. Roger Williams was of the opinion that spiritual preference needed not be the qualifier of a good citizen, nor what granted people suffrage rights as it had in the Massachusetts Bay Colony. The offer of a religious shelter was timely, as the Massachusetts Bay Colony government became increasingly strict in its laws against nonconformists. Settlers in Providence and Newport were in fact formally recognized by England before the Charter of 1663, in the Patent for Providence Plantation of 1643. This patent became obsolete fairly quickly because of its vagueness and its lack of recognizable standard legal clauses. The need for a new charter was intensified with the Restoration of Charles II to the throne in 1660. In this year the possibility of a new land deed represented an answer to multiple threats to the Rhode Island Colony: both as an opportunity to confirm allegiance to Monarchy after the collaboration with the Protectorate that led to Rhode Islands first charter and as

protection against being swallowed up by the acquisitive and religiously-intolerant Connecticut or Massachusetts Bay Colonies. Insurance against losing political autonomy in addition meant a narrow escape from oppression and an affirmation of the rights of Rhode Islanders to create, revoke and augment their own laws. THE 1663 RHODE ISLAND CHARTER: RELIGIOUS TOLERATION. Although other colonies received charters under similar circumstances, the Rhode Island Charter is unusual in its narrative introduction of those who were receiving it. The document told the story of how Rhode Islanders had left England after receiving encouragement from the King, with the aim of pursueing, with peaceable and loyall mindes their religious intentions, of godlie edifieing themselvesin the holie Christian ffaith and worship.5 It continued to say that upon reaching New England, and settling amongst other our subjects in those parts they were forced to leave to avoid those manie evills which were likely to ensue as a result of not being able to conform to the existing settlements different apprehensiones in religious concernements.6 It added that upon reaching the place they named Providence, they had not onlie byn preserved to admiration, but also increased and prospered.7 It then went on, famously, to lay out the request: And whereas, in theire humble addresse, they have ffreely declared, that it is much on their hearts (if they may be permitted), to hold forth a livelie experiment, that a most flourishing civill state may stand and best bee maintained, and that among our English subjects, with a full libertie in religious concernements; and that true pietye rightly grounded upon gospel principles, will give the best and greatest security to sovereignetye, and will lay in the hearts of men the strongest obligations to true loyaltye.8

5 The Charter of The Governor and Company of the English Colony of Rhode Island and Providence Plantations in New England, In America, 1663, John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. II 1664-1677 (RI: State Printers, 1857), 1. 6 Ibid, 4. 7 Ibid, 4. 8 Ibid, 4.

A section was included that stated that those not able to be part of the English Church, or to conforme to the publique exercise of it, or to take the oaths and articles made and established by that church, were exempt from having to do so by the Crown.9 The Charter also declared that noe person within the sayd colonye shall bee any wise molested, punished, disquieted, or called in question, for any differences in opinione in matters of religion[that does] not actually disturb the civill peace of our sayd colony.10 Clearly the King was impressed with the settlers ability to coexist in relative peace, with their perseverance during multiple persecutions starting in England, and their repeated proclamations of loyalty to the King. The term lively experiment has been credited to John Clarke, who likely composed the Charter, and its inclusion in this document presumably appealed to King Charles II who had hoped for these rights to be universally granted in England, according to his Declaration of Breda in 1660. The Declaration of Breda was a proclamation published by the exiled King while in the Netherlands that preceded the Parliamentary act restoring King Charles II to the throne, and it included language of religious toleration.11 The first interpretation of the Charter of 1663 can be found in the Governor Benedict Arnolds announcement to the public of the will and pleasure of his royall Majestye, a group of laws (or pertickelares) attached to the royal charter recorded by the General Assembly in

Ibid, 5. 10 The Charter of The Governor and Company of the English Colony of Rhode Island and Providence Plantations in New England, In America, 1663, John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. II 1664-1677 (RI: State Printers, 1857), 5. 11 Charles II, The Declaration of Breda, April 4, 1660. Transcription, [Old Parliamentary History, xxii. 238. See Masson's Life of Milton, v. 697.] Reviewed July 2012. http://www.constitution.org/eng/conpur105.htm An excerpt from the Declaration of Breda speaks to the Kings religious values: And because the passion and uncharitableness[sic] of the times have produced several opinions in religion, by which men are engaged in parties and animosities against each other (which, when they shall hereafter unite in a freedom of conversation, will be composed or better understood), we do declare a liberty to tender consciences, and that no man shall be disquieted or called in question for differences of opinion in matter of religion, which do not disturb the peace of the kingdom; and that we shall be ready to consent to such an Act of Parliament, as, upon mature deliberation, shall be offered to us, for the full granting that indulgence.

1664.12 The first three regarded the charter and is of relevance here. The first law mandated taking an oath of allegiance to the King, of most importance to the newly restored sovereign. The second law declared all men of competante estates and of civill conversation to be freemen from then on, able to be officers in the government and military.13 The third law was disproportionately large in its scope, and related to the ability of inhabitants to practice whatever religion they pleased, stating that all may be admitted to the sacrament of the Lords supper, and their children to Baptisume, if they desire it either by joining congregationes alredy gathered, or permitting them to gather themselves into such congregationes as they pleased.14 The law ended with the desire that the difference in opinnion may not break the bands of peace & charritye, making explicit that the state and church were not only separated in Rhode Island, but that it existed and was accepted in its different forms in Rhode Island.15 In answer to the third will and pleasure from the King, the Rhode Island Assembly confirmed that this Assembly doe with all gladness of heart and humbleness of mind approve of the religious freedoms granted, declaring that it hath ben a principall held forth and maintained in this Collony from the very beginning thereof.16 The Assembly praised the King for his gracious tenderness to differing opinianes in religious matters found in his gracious letters pattents where he states his espetiall and tender care and indulgence extended to tender consiences, differing in matters of religious worshipe and concearnments.17 The Charter gave this Corporation power to give and take such engagements as they shall thinke fitt allowing for

12 Acts and Orders of the General Assembly, sitting at Newport, May the 3, 1665, John Russell Bartlett, Records of Colony of Rhode Island and Providence Plantations, Vol. II 1664-1677 (RI: State Printers, 1857), 110. 13 Ibid. 14 Ibid. 15 Acts and Orders of the General Assembly, sitting at Newport, May the 3, 1665, John Russell Bartlett, Records of Colony of Rhode Island and Providence Plantations, Vol. II 1664-1677 (RI: State Printers, 1857), 110. 16 Ibid, 113. 17 Ibid, 113.

considerations of the liberty of concience therin granted.18 The large presence of Friends, or Quakers, in Rhode Island necessitated the particular to be exempted from mandated formes of oaths, and cerimonyes or circumstances relating therevnto. Reminding all that in this Collony it hath ben always accounted and granted a liberty to such as make a scruple of swearing and taken an oath the Assembly accepted the right to continue this exception. Quakers became a powerful group in the political and economic life of Newport, for example, and the ability to partake in government without having to discard their religious covenants (and possibly be expelled from their own group) was a welcome concession.19 Roger Williams communicated a more diverse view regarding the charter and its value in a letter to the freemen of Warwick in 1666.20 Urging the various towns of Rhode Island to collect among its citizens reimbursement for John Clarke for his labor securing the Charter of 1663, Williams revealed ambivalence regarding the importance of the document among his Rhode Island contemporaries. He wrote: I have visited most of my Neighbours at Providence this winter. Some say they are Sory and ashamed of the Delay [in paying the town] and promise to finish it with Speede. Some few say they have done it. Some say they like not Some Words in the CharterSome are against all Govrmt and Charters and CorporacionsSome will see the Charter first because they hear [that it was altered]. Some say let those that sent Mr Clarke into Engl. at first pay him.21 Williams assured his readers in Warwick of the importance of the Charter, naming 2 inestimable Jewells found therein. The first was peace among our selves and among all the Kings subjects and Friends in this Countrey and wheresoever. Williams was
18

Ibid, 111. 19 Daniel Boorstin, The Americans: The Colonial Experience (NY: Random House 1964), 44. He writes that Quakers objected that requiring the swearing of oaths to provide legal insurance of truthfulness implied that that one was a liar when not under oath. 20 To the Town of Warwick, 1 January 1665/66, Glenn W. LaFantasie, ed, The Correspondence of Roger Williams, Volume II, 1654-16882,(RI: Brown University, 1988), 534. 21 To the Town of Warwick, 1 January 1665/66, Glenn W. LaFantasie, ed, The Correspondence of Roger Williams, Volume II 1654-1682 (RI: Brown University, 1988), 535.

referring to the need of the other colonies to recognize Rhode Island as a fellow colony, and the rights the Charter gave its people. The other jewell was Libertie: the first of our Spirits wch neighter old nor N. Engl. knows the like, nor no part of the World a greater and the other libertie of our persons: No Life no Limbe taken from us: No Corporall punishmt no Restraining, but by knowne Lawes and Agreemts of our owne makingLibertie of Societie or Corporacion: of Sending or being sent to the General Assembly: of choosing and being chosen to all offices, and of making or repealing all Lawes and Constitutions among us.22 Almost sarcastically he added that I Confesse it were to be wished that these Dainties might have fallen from God and the King like Showersfrom Heaven, gratis and free.23 In these statements lie the meanings of the Charter of 1663 as interpreted by its composers. Clarke and Williams saluted themselves for establishing a colony more liberal regarding freedom of religion than any previous society. More profound was the understanding that everyones safety involved a move away from despotism, an allowance for citizens to be involved in their own governance and to be able to amend their own laws. These ideas would become very important in the later invocations of the Rhode Island Charter, especially just before the Revolutionary War. Later changes that affected the prominence of the Rhode Island Charter were the revocation of the Massachusetts Charter in 1684, the Glorious Revolution in England in 1688 that put William and Mary at the English throne, and their decision to make Massachusetts into a crown colony in 1691. The Province of Massachusetts Bay, as it would be called, grouped Plymouth Colony and all English claims above the northern border of Connecticut and Rhode Island into one colony with a new charter. The losses to the Massachusetts colony in this new

22 Ibid, 535. 23 Ibid, 536.

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charter were significant. In the new charter the Province of Massachusetts no longer had a right to elect its own senior government officers, namely judges, governors and governor assistants, who would instead be appointed by the Crown. Laws created in the Massachusetts Colony would have to be approved by administrators in England, and suffrage rights were allotted by property requirements, not religious ones. These changes simultaneously increased and secularized government, and they marked the beginning of the end of theocracy in New England, and the start of the process towards secular democratic governmental policies in Massachusetts as well as Connecticut.24 It took until 1705 for the English Crown to revoke the last of the anti-Quaker laws effective in New England. Some of these laws had forbade towns from entertaining Quakers, had mandated banishment policies, had specified punishment for possession of Quaker writings, and had forbidden any prolonged or unnecessary discourse with a Quaker.25 Even with the calming of radicalism surrounding the frequent splintering of religious groups, Rhode Island retained its particular image as the place for religious dissidents and outsiders into the late 18th Century. Regarding a group of Quakers sailing for American in 1757 two ministers of the Reformed Dutch Church in New York wrote to Holland that it was likely a recent group of Friends had sailed for Rhode Island for that is the receptacle of all sorts of riff-raff people, and is nothing else than the sewer of New England. All the cranks of New England retire thither.26 Once religious toleration was secured in Rhode Island it became somewhat normalized. Thus when the Charter of 1663 legalized the radicalism of Rhode Island, a tiny haven surrounded by Puritans, the religious freedoms available became only one of the many characteristic of its

24

Connecticut was not a crown colony and continued to operate under its Charter, but it had never fully been a theocratic government. 25 David Weston, (ed), Backus History of the Baptists, Vol I (MA: Backus Historical Society, 1871), 465. 26Carl Bridenbaugh, Fat, Mutton and Liberty of Conscience: Society in Rhode Island, 1636-1690 (RI: Brown University, 1974), 3. Citing Edward T. Corwin, Compiled Ecclesiastical Records of the State of New York Vol. I. (NY: University of the State of New York Press, 1901), 399-400.

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people and government. The economic ascent of Rhode Island, especially Newport, in the mid 18th Century very soon made any argument against its political policy of religious toleration or separation of church and state seem irrelevant. A letter from three ministers from Boston, Dorchester and Dedham to the Providence Assembly in 1721 praised the Rhode Island Colony for being able to treat each other with peace and love despite being societies in different modes of worship. They added that they could not think of [it] without admiration and assumed that it was owning to the choice liberty granted to protestants of all persuasions, in the royal charter given to them.27 An indication of the quick change of political climate in New England is found in their statement that the ancient matters referring to the previously onerous relationship between the governments, may be buried in oblivion that grace and peacemay dwell in every part of New England and that the several provinces and colonies in it may love one another with pure hearts fervently.28 A reply from the Rhode Island Assembly dated January 23rd, 1722 answered that the colonys happiness consisted principally in not allowing societies any superiority over one another and that they each supported their own ministry of their free will and not by constraint or force. As for the ancient matters referencing the history of abuses by the Massachusetts government, the letter asserted that far be it from us to revenge ourselves, or to deal to you as you have dealt to us, but rather say Father forgive them, they know not what they do.29 The ended with the words: But if you mean that we should not speak of former actions, done hurtful to any mans person, we say, God never called for that, nor suffered it to be hid, as witness Cain, Joab and Judas are kept on record to deter other men from doing the like.30

27 David Weston, (ed), Backus History of the Baptists, Vol I (MA: Backus Historical Society, 1871), 7. 28 Ibid. 29 Ibid, 8. 30 Ibid, 8.

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With its values of toleration Rhode Island became a refuge not only for those of the protestant religions, but of any religion. As persecution continued in other nations and colonies, the town of Newport attracted residents of Spanish-Jewish and Portuguese descent, and populations of Baptists, Congregationalists, Anglicans, atheists and splinter groups of these denominations. The diversity of the town of Newport contributed greatly to its favorable image as a thriving international trading port, where civil contribution trumped religious affiliation. The interpretation of the Charter given here have so far reflected those we emphasize today: The Rhode Island Charter of 1663 was significant for its religious toleration and heralded for its introduction of separation of church and state in government policy. At first viewed with dismay by neighboring colonies, these views softened with the general increase of suffrage rights and religious diversity in the other representative governments of North America; and in following decades the most initially shocking aspect of the Charter was generally accepted in New England. However, the Charter remained relevant through other passages that gained prominence as other political issues came to the fore. LAND, RELIGION AND THE CHARTER. Between 1663 and the Revolutionary War era, the Charter was evoked most frequently in connection with border disputes between Rhode Island and both Connecticut and Massachusetts. The many charters that were put in effect, revoked, and overlapped in 17th Century New England were overwhelming even in their own time and caused many disputes between colonies. Adding to the confusion of geographical jurisdiction was the re-issue of charters, the amalgamation of colonies into bigger entities such as Massachusetts absorbing Plymouth Colony, and the recognition of recent settlements such as the chartering of Connecticut in 1662.

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Land disputes during this time were amplified in significance by the threat of changes in government jurisdiction, and through it, government policy. For the small colony of Rhode Island and Providence Plantations, which had laws seen as essentially blasphemous to its neighbor, land was a pressing issue indeed. The disputes stemmed from a general lack of geographic knowledge of New England. In the Rhode Island Charter, for example, the Pawcatuck River formed the colonys western boundary. Meanwhile, the Connecticut Charter of 1662 designated that colonys eastern boundary as the Narrogancett river, commonly called Narrogancett Bay, where the sayd river falleth into the sea.31 The protection of its population was the initial driving motivation for the Rhode Island Assembly in disputes with the Connecticut and Massachusetts Colonies. An example of how this affected people is found in the Rhode Island trial of two constables, Mr. Smith and Mr. Hudson, for enforcing the laws of Connecticut in Narragansett. Ruled by policies nearly as orthodox as those of Massachusetts, these two officers were charged with the crime of religiously persecuting residents. In an attempt to disarm the opposition with its own words, Connecticut secretary John Ally quoted the Rhode Island charter in 1664, affirming his familiarity with the language of the document. He suggested that the Rhode Island government forbear exerciseing any authority, ouer those places contested by the two colonies to allow its inhabitants the quiat possession of their just rights, which is but what your agent in England hath vnderhand soberly requested.32 Letters between the governments regarding geographical semantics quickly tumbled into acrimony, with the Rhode Island Assembly receiving a letter opening with Fifth reply.

31 Proceedings of the commissioners of Connecticut and Road [sic] Island, June 14th, 1670, John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. II 1664-1677 (RI: State Printers, 1857), 312. 32 Coppy of Letter from Connecticut to Rhode Island, signed John Allyn, Hartford, Sept 9, 1664 John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. II 1664-1677 (RI: State Printers, 1857), 68.

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Gentlemen: We cannot but admire with you that when we speake playne English, it should be so difficult for you to understand us.33 Negotiations simultaneously occurred with representatives from Plymouth and Massachusetts to establish borders on the north and north-east. Strides were taken in the agreement of 1747 when Rhode Island gained Bristol County including the towns of Little Compton, Tiverton, Bristol, Warren and Cumberland.34 If borderlines were disputed initially for the protection of religious freedoms, this motivation was quickly superseded by economic considerations. Of particular concern were the towns of Westerly, Saunderstown, and Stonington, either located in overlapping claims or petitioning allegiance to one or the other colony in violation of their geographical charter designations. The Rhode Island Assembly sent letters back and forth to other colonies frequently during the mid 18th century, arranging for meetings, border walks, assemblies and inspections by colonial representatives and royal magistrates. A commentator described the futility of one such meeting, writing that the Commissioners might as well have decided that the line between the States was bounded on the north by a bramble-bush, on the south by a blue jay, on the west by a hive of bees in swarming-time, and on the east by five hundred foxes with firebrands tied to their tails35 The inability to permanently establish jurisdiction became a prominent symbol of colonial government incompetence. This sentiment was at the root of loyalist ideology of the need for increased English oversight. A justice in New York recorded how land disputes influenced the local political climate in a letter to a friend, referring to a gentleman of the law

33

Proceedings of the commissioners of Connecticut and Road [sic] Island, New London, June 15, 1670, John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. II 1664-1677 (RI: State Printers, 1857), 314. 34Clarence Winthrop Bowen, Boundary Disputes of Connecticut (Cambridge: University Press, 1882), 5. 35 Rufus Choate appealing before the Legislature of Massachusetts, in Clarence Winthrop Bowen, Boundary Disputes of Connecticut, (Cambridge: University Press, 1882), Introduction.

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in Rhode Island, who had known a land cause of considerable value that had judgment reversed different ways seven or eight times; property being thus rendered wholly insecure. 36 The justice added that it was no wonder that persons of property and best sense and most sincerity, among them, have long wished for a change of government, and to be under His Majestys more immediate protection.37 Representatives of each colony were arguing for the legitimacy of their boundaries in English court as late as the 1770s. One royal commissioner suggested to the King that Connecticut and Rhode Island consolidated, might become as respectable a royal government, as any on the continent, emphasizing that the better sort of them have long groaned under their motley administrations, and wishto be taken more immediately under the protection of the crown. In response to the protest to this statement, the commissioner admitted that this solution would be an arduous task that would require a gentleman of very extraordinary qualifications and abilities.38 Indeed, the aversion of states to consolidate their land completely would, after Independence, be rectified by very able men in the development of the federal system of government. Very little direct evocation of the idealistic aspects of the Rhode Island Charter was used in the land-dispute era, even though it was clear to all that the values of government are tied to jurisdiction. Maybe the ramifications of being absorbed into Connecticut or the Massachusetts Bay Colonies did not need to be explained, but it is more likely that the religious values so

36 Letter from Chief Justice Horsmanden to the Earl of Dartmouth, New York, 20th Feb, 1773, John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VI 1757-1769 (RI: State Printers, 1857), 182. 37 Letter from Chief Justice Horsmanden to the Earl of Dartmouth, New York, 20th Feb, 1773, John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VI 1757-1769 (RI: State Printers, 1857), 182. 38 Letter from Chief Justice Horsmanden to the Earl of Dartmouth, New York, 20th Feb, 1773, John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VI 1757-1769 (RI: State Printers, 1857), 182.

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cherished to Rhode Islanders at the Charters implementation had begun its decline in importance. Indeed, all New England governments were essentially secular by the eve of the Revolutionary War. THE REVOLUTIONARY WAR AND THE CHARTER. The lens of New Englanders embarking on the Revolutionary Era affords a new interpretation of the charter that shifts its point of relevance from religion and land to self-rule. In the last half of the 18th Century the Charters 1/5th clause and its outline of government organization overshadowed any significance related to religious toleration, and land disputes between colonies, although still active, became secondary to producing a unified front. The Colony of Rhode Island was the first colony to revoke allegiance to England, doing so in May 4th, 1776. Reasons ranged from ideological to economic, and the charter again became the subject, or at least the source, of heated political debate. Since its inception in 1663 Rhode Island had followed its charter regarding government, selecting the secular democratic process as most appropriate for the colony. Unlike the Massachusetts government, the Rhode Island Charter had never been revoked or replaced. Indeed, excluding the three-year period of 1686-1689 when the Andros administration managed all of New England, the Rhode Island government had never been ruled under any English oversight.39 In the years after the French and Indian War (1754-63), largely fought in North America, England was in dire need of funds to recover the cost of war. Since the purpose of the war was the protection of English colonies in America, the Crown thought it fit to tax the colonies for the expense of their defense. Simultaneously the Crown was failing to reimburse the soldiers and
39

The Andros administration managed what King James II called the Dominion of New England, a re-chartering of the entire region to decrease colonial autonomy. The Dominion included Connecticut, Massachusetts, Plymouth, Rhode Island, New York, New Hampshire, East and West Jersey. Mary Lou Lustig, The Imperial Executive in America: Sir Edmund Andros 1637-1714 (NJ: Fairleigh Dickinson University Press, 2002), 134.

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colonial governments for the significant expenditures they had incurred in the organizing, housing, training and provisioning of troops involved in the battles.40 In addition, Rhode Islanders, accustomed to their own government, found they were unable to control laws now being created regarding them, laws ranging from trade embargoes hindering mercantile industry, taxation on imports, and direct taxes. As the English Crown began revenue collection, tensions mounted, especially in the town of Newport, where the merchant economy was most vibrant. In a plea against the passing of the Sugar Act of 1764, the Rhode Island Assembly wrote that the colony was very small, that a great part is barren soil, not worth the expense of cultivation, and that the colony had no staple commodity for exportation, and does not raise provisions sufficient for its own consumption.41 The letter concluded that the passing of a Sugar Act would reduce it to the most deplorable condition, rendering the colony unable to purchase any British goods. The implementation of the Stamp Act in 1765, which charged a tax on instruments made use of in public transactions, law proceedings, grants, conveyances and securities of land or money within the Rhode Island Government gave Rhode Islanders even more reason to modestly and soberly inquire, what right the Parliament of Great Britain [had] to tax them.42 One can conclude from the 18th Century Rhode Island accounts regarding the Charter that the liberties of religious freedom celebrated one hundred years previously had been surpassed in importance by matters of government organization and its 1/5th clause. Religious
40 The governor of Rhode Island to General Amherst, 1763 John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VI 1757-1769 (RI: State Printers, 1857), 374. 41 Remonstrance of the Colony of Rhode Island to the Lords Commissioners of Trade and Plantations, January 24th, 1764, John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VI 1757-1769 (RI: State Printers, 1857), 378. The Earl of Halifax to the Governor of Rhode Island. John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VI 1757-1769 (RI: State Printers, 1857), 404. 42 The Earl of Halifax to the Governor of Rhode Island. John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VI 1757-1769 (RI: State Printers, 1857), 404. Remonstrance of the Colony of Rhode Island to the Lords Commissioners of Trade and Plantations, January 24th, 1764, John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VI 1757-1769 (RI: State Printers, 1857), 378.

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rights had not been an active issue in Rhode Island for some time, but the division of property in the form of taxes, and the rightful amount owed to the Crown, suddenly was. The Pamphlet named The Rights of Colonies Examined, written by Stephen Hopkins of Rhode Island, who used the pen name W. Sharpe when writing to the papers, was ordered to be published by the General Assembly in November 1764.43 In this document the Rhode Island Charter is quoted for its granting of the rights and privileges of free-born Englishmen and for, in a solemn manner, granting all the freedom and liberty that the subjects in England enjoy; that they might make laws for their own government, suitable to their circumstances and that they were to pay only one-fifth part of the ore of gold and silverin lieu of, and full satisfaction for, all dues and demands of the crown and kingdom of England upon them.44 Hopkins emphasized that the taxing of Americans by representatives of the people in Britain and the malady of being held subordinate would lead to an increasing evil that would always grow greater with time.45 The religious liberty celebrated a century earlier as most significant in the Charter had been superseded, in short, by freedom of speech and democratic ideals. A town meeting in Richmond reiterated to its citizens that by the said charter the colony of Rhode Island was entirely exempted from all services, duties, fines, forfeitures, claims and demands, whatever; except a fifth part of all the ore of gold and silver, found at all times in the colony; which is reserved in lieu of those duties, again emphasizing the rise of this clause in prominence.46 This same town meeting brazenly declared that General Assembly of this colony hath the sole exclusive right of levying taxes upon the inhabitants thereof: and that
43

The Rights of Colonies Examined, by Stephen Hopkins, an address ordered to be published by the General assembly, November, 1764, John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VI 1757-1769 (RI: State Printers, 1857), 416. 44 Ibid. 45 Ibid. 46 Proceedings of the People of Richmond, in Town Meeting, Feb 28, 1774, John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VII, 1770-1776 (RI: State Printers, 1857), 276.

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every attempt to vest that power in any other person or persons, whomsoever, is unconstitutional, and hath a manifest tendency to destroy the liberties of the colony.47 A Friend to the Colony wrote in to the Newport Mercury in 1765 that: I am not so absurd as to say, or imagine, that the assembly of this little colony is any way equal in dignity, or extent of power, to the house of commons.Our assembly acts in a much narrower field, its operation confined & circumscribed with the limits of this little community, extend not to any other part of the Kings dominions: and its poweris subordinate to that of British legislature I only contend for a right in the subjects of thiscolony, to the laws of England, and to the undoubted right of Englishmen, that no taxes be imposed upon them, but by their respective legislature, who alone have the right of imposing internal taxes.48 The author continued that there are principles on which every free government must stand; and that we Americans dare tell such truths, and publish such principles, is a glorious proof of our civil and religious freedom.49 In that phrase he uttered one of the few clear connections people were still making between the two liberties. The Rhode Island Charter was used as early as 1765 in arguments against taxation, as was communicated by an English newspaper regarding a petition brought forward by a Rhode Island agent, Richard Partridge, opposing the Sugar Colony Bill pending in Parliament. The petition was against certain duties [that were] to be laid on several commodities mentioned in the bill. It was said that Rhode Islanders apprehend[ed] it to be against their charter or, as later defined they humbly conceive[ed] .... the bill ... highly prejudicial to their charter.50 Sir W-m Y-ge [William Younge?] spoke to the house and noted that This is something very extraordinary, and in my opinion looks mighty like aiming at an independency, and disclaiming
47

Proceedings of the People of Richmond, in Town Meeting, Feb 28, 1774, John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VII, 1770-1776 (RI: State Printers, 1857), 276. 48 Contributor: A Friend of the Colony, Newport Mercury, (Monday, January 14, 1765) #330. Newport Historical Society Archives. 49 Ibid. 50 Contributor: From the London Magazine, for October, 1733, Newport Mercury, (Monday, January 14, 1765) #332. Newport Historical Society Archives.

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the authority and jurisdiction of this house, as if this house had not a power to tax them, or to make any laws for regulating the affairs of their Colony.51 A T-s W-n Esq. chimed in that it was impossible that the bill is against their charter; I hope, Sir, they have no charter which debars this house from taxing them as well as any other subjects of this nation; I am sure they can have no such charter.52 The Sugar Colony Bill would have increased the price of raw materials, thus affecting the Rhode Island rum enterprise. The bill did not directly tax the Colony. A Sir J-n B-rn-d defended Rhode Island in the house, saying that any tax on the sugar colonies would increase the prices, and added that the people in every part of Great-Britain have a representatives in this house, who is to take care of their particular interest...but the petitioners in the petition [now present] have no particular representatives...and therefore have no other way of applying or of offering their reasons to this house but by petitioning.53 Even if Parliament had proposed direct taxation, it can be argued that there is no statement in the Rhode Island charter actally barring such an action. What was present in the charter was the freedom to create a representative government. This concession happened to develop into what one Royal commissioner would later scornfully call a downright democracy where the Governor is a mere nominal one, and therefore a cipher, without power or authority; entirely controlled by the populace, elected annually, as all other magistrates and officers whatsoever54 The result of this government model was that Rhode Islanders felt entitled to a place at the table regarding laws affecting them. Indeed this same commissioner wrote, with regret, that although all colonies were required to
51

Contributor: From the London Magazine, for October, 1733, Newport Mercury, (Monday, January 14, 1765) #332. Newport Historical Society Archives. 52 Ibid. 53 Ibid. 54 Chief Justice Horsmanden to the Earl of Dartmouth, New York, 20th February, 1773, John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VII 1770-1776 (RI: State Printers, 1857), 182.

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create laws as near as may be to the laws of England Rhode Island had paid little regard to that injuncture.55 In addition the author added that Rhode Islanders never had had their laws transmitted for the royal approbation, nor indeed, by their charter were they obliged to do so.56 The Charter in the Revolutionary period was reviewed by the English for indications of the legality of their power structure, and the English seem to have found, with a certain degree of surprise, that Rhode Islanders were arguing that they had their own civil governments besides to support and were now challenging Parliaments right to make laws about them, which one author argued has never been questioned.57 The system of government allowed for by the Rhode Island Charter contributed greatly to their confidence, and the lack of oversight by the Crown had increased their empowerment. During the times of tension leading up to the Declaration of Independence in 1776 many articles circulated regarding the distribution of power between the colonies and England. In England the powers that had been given to the colony of Rhode Island were not perceived as greater than what was given municipal governments inside its borders. Rebellious Rhode Islanders, however, viewed their assembly as an authority that had managed itself effectively and independently for a century, without ever having fallen under the oversight of the crown. These arguments were, to Loyalists, seducing colonists into a dangerous belief, that they are not subject to the jurisdiction, authority, or animadversion of parliament.58 A very prolific Newport Loyalist writer, called O.Z &c and later identified as Martin Howard, pointed out that a number of previous colonial governments had had their charters revoked, offering the warning that the
55 56

Ibid. Ibid. 57 Contributor: Unattributed, Excerpt: A pamphlet has lately been publissed in London, entitled The REGULATIONS lately made concerning the COLONIES, and the TAXES imposed upon them (pages 101-114). Newport Mercury, (Monday April 22, 1765), #346, Newport Historical Society Archives. 58 Contributor: Martin Howard, Letter from O.Z. &c., Newport Mercury (Monday March 11th, 1765) #340, Newport Historical Society Archives.

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vacating of all charter and proprietary governments is not the ultimate chastisement that may be used with delinquent colonies: The parliament of Great-Britain may abridge them of many valuable privileges which they enjoy at present. Some colonists were adamant that they needed to have representation in Parliament if they were to be taxed by it, and many petitioned for leave to send a certain number of Representatives to the British Parliament, from the time of the next general elections.59 A letter from London to a Charlestown SC resident reported that several publications from n. America ha[d]made their appearance there and that it had been said publickly they pretent to assimilate themselves to the most august representative body in the world, and forgetting at one instant the royal hand which gave them what theyt enjoy, at the next insist on what it never did nor could give, and exemption from the power of parliament.60 The suggestion that the governments of the North America were comparing themselves directly to the ruling seats of England was probably an exaggeration. It was likely, though, that much of the conviction regarding Rhode Islands legal rights were born out of confidence in its democratic system of governance conducted, how ever disorganized at times, in true autonomy. By the end of 1774, Rhode Islands two newspapers began publishing arguments that even the Kings authority was conditional on his acting as the servant of the people, that the subjects would be absolved from their allegiance and bound to resist if George III acted to damage their welfare.61 Indeed, they soon agreed he was doing so. The Rhode Island Assembly that met in May 1776 reversed the Act for the more effectual securing to His Majesty the allegiance of his subjects, in this his colony and dominion of Rhode Island and Providence Plantations officially revoking allegiance to the King for forgetting his dignity, regardless of the compact most
59Contributor: Unattributed, News out of London, March 27, to 30, Newport Mercury (Monday, May 20, 1765), #340, Newport Historical Society Archives. 60 Contributor: Unattributed, News from Charleston, S.C.: Extracts of letters from London, dated February 2d, 7th and 10th, Newport Mercury (Monday, May 20, 1765), #350, Newport Historical Society Archives. 61 Sydney V. James, Colonial Rhode Island: A History (NY: Charles Scribners Sons, 1975), 345.

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solemnly entered into in the Charter of 1663.62 The removal of the Kings name and reference from all official Rhode Island documents was also mandated during this meeting. By 1776 some Rhode Islanders suspected a move to independence was imminent. Stephen Hopkins wrote to the Governor of Rhode Island from Philadelphia, where he would attend the drafting and signature of the Declaration of Independence.63 Judging from recent letters he had received from the Rhode Island assembly left him little room to doubt what...the opinion of the colony I came from [was].64 He added that he suppose[d] it will not be long before the Congress will throw off all connection as well in name as in substance, with Great Britain.65 His reason for this opinion was his knowledge of a recent resolve recommending to all the colonies who did not already have a perfect form of government, to take up and form such, each colony for themselves.66 During the period leading up to independence in short, the Charter had lost its urgency as significant for the religious freedoms it granted or for the physical land area it permitted to Rhode Islanders. It had gained significance as a political contract in the process of being undermined. This perception of a document that had for centuries represented quite simply a receipt, or proof, of right to acquire land as representatives of the Sovereign, had in the eyes of 18th Century Rhode Islanders turned into a negotiable contract. Even some Englishmen agreed with the American argument. The Bristol assembly proceedings of Feb 28, 1774 quoted a late

62

Proceedings of the General assembly, held for the Colony of Rhode Island an Providence Plantations, at Newport, the first Wednesday of May,1776. John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VII 1770-1776 (RI: State Printers, 1857), 522. 63 Stephen Hopkins, Letter to the Governor of Rhode Island, Philadelphia, 15 May, 1776, John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VII 1770-1776 (RI: State Printers, 1857), 527. 64 Stephen Hopkins, Letter to the Governor of Rhode Island, Philadelphia, 15 May, 1776, John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VII 1770-1776 (RI: State Printers, 1857), 527. 65 Ibid. 66 Ibid.

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Bishop of Salisbury who had made a distinction between the charters of England to its local governments there, and those granted to colonies. He had stated that the former had been but acts of grace where as charters granted to the colonies had been a contract between the King and the first patentees to subdue a wilderness...both to them and their posterity.67 This image of a personal agreement of one offering land to the other to develop for the benefit of Empire in exchange for certain rights seemed prevalent. Indeed, the taxes that instigated the movement towards independence were now described as a design to divest the colonies of those rights which were essential to the freedom of a people.68 The Declaration of Independence was announced, and the War for Independence concluded with much effect for Rhode Island. The Charter remained the guiding document of Rhode Island well into state-hood.69 The State Constitution of 1842 replaced it, after the Dorr rebellion initiated a suffrage adjustment to reflect more accurately an increasingly industrial Rhode Island. Thus the Rhode Island Charter of 1663 became legally, but not evocatively, null and void. THE RHODE ISLAND CHARTER, TODAY. With the democratic system ensured through the independence of the United States of America we today look back at the Charter for clauses of significance to us. Once more religion and its ties to government are in the forefront of the Rhode Island and American psyche, as our government divides further into an era of a theologically-divided two party system. As has been
67

Proceedings of the People of Bristol, in Town Meeting, Feb 28, 1774, John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VII 1770-1776 (RI: State Printers, 1857), 278. 68 Address of the Colony of Rhode Island, to the Congress, relative to its Condition, read to the Delegates of the Continental Congress, 1776 , John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations, Vol. VII 1770-1776 (RI: State Printers, 1857), 424. 69 Can there be a more slavish or infamous position, than that we have no constitution in the colonies, but what the King is pleased to give us? Contributor: A Friend of the Colony, Newport Mercury. Monday, January 14, 1765, #332. Newport Historical Society Archives.

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the case with the land disputes and revolution our renewed focus on particular aspects of the Charter says as much about our own time period as about the perceptions of those alive during its drafting. The Charter was a document that, through land ownership, protected citizens against state intervention into religious practice while it simultaneously protected them from government-mandated worship. These ideas are important, are actively debated, and remain relatively undefined. It is in this ambiguous light that constitutional debates occur around a prayer-banner in a high school auditorium in Cranston and in many, many other supreme court cases. That said, the Charter of 1663 likely had its strongest effect nationally in inspiring the codification of a secular democratic government. The Rhode Island Charter has been credited with inspiring language in our Bill of Rights, the acceptance and implementation of a democratic system, and the separation of church and state nationally.70 If any of these claims are even partially true, then it is in necessary to credit the many variables that led to the development of this document; the colonial corporate governance model in its effect on the development of democracy; the international context of religious persecution in which Rhode Islanders created local settlements for safety against oppressive states; the tangible meaning of land-ownership in achieving this safety; and the philosophies of leaders such as Roger Williams, John Clarke and even King Charles II. All of these considerations merit further in-depth research regarding their influence in an era when we are very much pondering the impressive legacy, and the meaning behind the ideas, found in the Charter of Rhode Island and Providence Plantations, 1663.

70

Philip Hamburger, Separation of Church and State (MA: Harvard University Press, 2004), 51. Alvin W. Johnson, Frank H. Yost, Separation of Church and State in the United States (MN: University of Minnesota Press, 1948), 2.

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