The year 2013 marked the 350th anniversary of Rhode Island’s Royal Charter of 1663. Governor Lincoln Chafee took the initiative in appointing a 35-member 1663 Colonial Charter Commission that sponsored several commemorative initiatives, most notably the creation of a beautifully appointed, climate controlled Charter Room on the first floor of the State House.
Dr. Ted Widmer, a commission member from Brown University, took the lead in preparing a booklet about the Charter entitled A Lively Experiment: Reflections on the Charter of 1663. Ted wrote the introduction and the concluding essay. The other contributors were Dr. J. Stanley Lemons of Rhode Island College, the leading authority on Rhode Island’s Baptists; Dr. C. Morgan Grefe, Director of the Rhode Island Historical Society; and me. The following essay is my contribution to this worthwhile project.
Atop Rhode Island’s present statehouse stands the Independent Man, a state symbol and its most famous piece of statuary. This heroic figure recalls the individualism, autonomy, democratic localism, self-reliance, and entrepreneurial leadership that characterized Rhode Island during its colonial, Revolutionary, and early national periods. The Man’s looming presence evokes the spirit of Rhode Island’s formative era when defiance in defense of liberty was a way of life.
Rhode Island’s most cherished right was a freedom Roger Williams described as “soul liberty.” That experiment in “soul liberty” began in January 1636, when the Puritan magistrates of Massachusetts Bay banished dissenting clergyman Roger Williams into the winter wilderness. An avowed Separatist from the Church of England, the Cambridge-educated Williams was ousted for attacking the cornerstones upon which the Puritans’ Bible commonwealth was built–the theology of the covenant and the use of civil magistrates to enforce that theology.
A vital area of disagreement between Williams and the builders of the Bay Colony was that Williams considered some religious doctrines propounded by the Puritans to be a prostitution of theology and a misinterpretation of the relationship between the Old Testament and the New. His alternative to the orthodox Puritan approach was a cause for his exile. This alternative was a major element in Williams’s notions of religious freedom and the separation of church and state, principles that found their expression, either directly or by implication, in Rhode Island’s basic law.
As a result of his efforts at Biblical interpretation, Williams concluded that the temporal power exercised over the religious sphere in the Old Testament was merely the archetype of spiritual power in the New, and thus, whenever the modern state attempted to enforce conformity of religious belief, it was acting in an unjustifiable manner. That false assumption of power, asserted Williams, had led and would continue to lead to persecution and religious wars. Williams’s obsession with religious persecution and its baneful effects upon both spiritual and civil life occupies a prominent place in his thought and furnished the theme for one of his major works, The Bloody Tenent of Persecution (1644).
The fiery minister’s typological approach had liberty of conscience as its logical corollary, and it contributed substantially to Williams’s dogma of separation of church and state. It is important to note that the theologically-obsessed Williams sought this separation not to protect the state from the dominance of the church but to free the church and the individual conscience from the interference and coercions of the state. Williams’s religious creed thus led him into the political sphere, where he was essentially a traditionalist who believed in stability and deference. As historian Edmund Morgan has observed: “So far as the political order was concerned, Williams had really only one revolutionary statement to make. He denied that the state had any responsibility for the only form of life which has absolute importance–the life of the soul.”
Indicative of how strongly Williams felt about state domination of the church, in one burst of vituperation the polemical theologian asserted that such a condition would render the church “the garden and spouse of Christ, a filthy dunghill and whore-house of rotten and stinking whores and hypocrites.” Obviously Williams did not take the issue of separation lightly.
Among the conclusions that historians have drawn from Williams’s earthy and passionate theological writings, the following seem to be the most significant: (1) any attempt by the state to enforce religious orthodoxy “stinks in God’s nostrils” because it perverts God’s plan for the regeneration of souls, and it is productive of persecution and religious wars; (2) God has not favored any particular form of government, and it is therefore to be inferred that forms of government will vary according to the nature and disposition of the people governed; (3) political and, especially, religious diversity is inevitable; and (4) the human conscience must be
completely emancipated through the establishment of religious freedom and the separation of church and state.
Most recent historians of American religion and constitutionalism–including Mark DeWolfe Howe, Martin E. Marty, and Edwin S. Gaustad–as well as Williams scholars Glenn W. LaFantasie (editor of a recent edition of Williams’s unpublished letters) and John Barry–believe that Williams, through his writings and his works, influenced the religion clauses of the First Amendment to the U.S. Constitution. These scholars assert that the Founding Fathers were well aware of the Rhode Island system of disestablishment and soul liberty, which was still intact under the same frame of government when the Bill of Rights was drafted and ratified; that the guarantees in Rhode Island’s famed Charter of 1663 influenced similar grants of religious liberty in the proprietary charters of East Jersey, West Jersey, and Carolina issued shortly thereafter; and that Williams’s views on religion and the state were distilled and reiterated by Algernon Sidney and other English writers of the Whig libertarian tradition with whom our Founding Fathers were quite familiar.
Williams was also associated with an Anglo-American Baptist tradition of separationism and soul liberty, drawing his inspiration from that tradition and strengthening it with his writings and example. Throughout the colonial and founding eras, as historian William G. McLoughlin has shown, the tradition was maintained, refined, and modernized by the heroic determination of a coterie of lesser-known Baptist ministers and promulgated to the world of the Founding Fathers by the Reverend Isaac Backus (1724-1806), a prolific author and itinerant Baptist preacher who roamed the byways of southern New England spreading the gospel of separationism.
Perhaps Professor Martin Marty has said it best: the American church-state outlook has issued “chiefly from two parallel, often congenial, sometimes conflicting, and occasionally contradictory positions”–the Rhode Island dissenting tradition, with its Biblical base, initiated by Williams, and the eighteenth-century Virginia Enlightenment tradition, rooted in natural law and natural rights, expounded by Jefferson and Madison.
Despite Marty’s balancing act, however, Mark DeWolfe Howe has effectively carried the historical controversy into the realm of current legal and constitutional jurisprudence. Asserting that the U.S. Supreme Court, “in its role as historian, has erred in disregarding the theological roots of the American principle of separation,” he contends that “the predominant concern at the time when the First Amendment was adopted was not the Jeffersonian fear that if it were not enacted the federal government would aid religion . . . but rather the evangelical hope that private conscience and autonomous churches, working together and in freedom, would extend the role of the truth.” Citing Roger Williams’s letter to the Reverend John Cotton, wherein the Rhode Island exile coined the metaphor “hedge or wall of separation between the garden of the church and the wilderness of the world,” Howe maintains that “when the imagination of Roger Williams built the wall of separation, it was not because he was fearful that without such a barrier the arm of the church would extend its reach. It was, rather, the dread of the worldly corruptions which might consume the churches if sturdy fences against the wilderness were not maintained. While one may endlessly debate the question of William’s’s impact on the First Amendment, his influence on Rhode Island’s basic law is indisputable. All the state’s founding documents bear the indelible impress of his fundamental beliefs. The Providence town compact of 1637, that settlement’s first frame of government, gave political power to the original “householders” but contained the all-important proviso that such control was to be exercised “only in civil things.” A more detailed “plantation agreement” of 1640 reiterated this limitation, and the colonial patent that Williams obtained for the original towns in 1643/44 from the Long Parliament gave implicit sanction to the separation of church and state.
The culmination of this pioneering process, however, was Rhode Island’s Royal Charter of 1663, obtained from King Charles II by tenacious Newport Baptist John Clarke, an important, though underappreciated, religious leader whose views closely paralleled those of Roger Williams. This document allowed the establishment of a self-governing colony wherein all local officials, from the governor and assemblymen to the viewers of fences and corders of wood, were either chosen directly in town meetings by the freemen or appointed on a annual basis by the elected representatives of the people.
The charter’s most liberal, generous, and unusual provision, however, bestowed upon the inhabitants of the tiny colony “full liberty in religious concernments.” The document, in words crafted by Clarke, commanded that “noe person within the sayd colonye, at any time hereafter, shall bee any wise molested, punished, disquieted, or called in question for any differences in opinione in matters of religion.”
This guarantee of religious liberty was a vindication of Williams’s beliefs and royal recognition of the fundamental principles upon which the Providence Plantation was founded–absolute freedom of conscience and complete separation of church and state. As Williams later observed, this liberality stemmed from the king’s willingness to “experiment” in order to ascertain “whether civil government could consist with such liberty of conscience.” This was the “lively experiment” upon which the government of Rhode Island was based.
Because such a free and open governmental system prevailed in 17th-century Rhode Island, the colony because a haven for Baptists, Separatists, Antinomian followers of Anne Hutchinson, Gortonians, Quakers, Sephardic Jews, and Huguenots. In 1702, disgruntled Puritan leader Cotton Mather wrote that Rhode Island was a motley collection of all sects except Roman Catholics and true Christians (i.e., Congregationalists).
But has Rhode Island continued to practice what its founder preached? To a great extent, it has: never has freedom of worship been impaired within Rhode Island’s borders. Such a record is truly commendable. And yet for over two centuries the spirit of Rhode Island’s famed guarantee was violated because both colony and state imposed various civil disabilities and discriminatory policies upon religious minorities, especially Roman Catholics. After Williams passed from the scene, Rhode Island too often exemplified the condition lamented by the 18th-century Irish satirist Jonathan Swift: “We have just enough religion to make us hate,” said Swift, “but not enough to make us love one another.”
Rhode Island’s religiously-inspired litany of civil wrongs began in 1719, when the General Assembly enacted a code of laws containing a statute denying freemanship–the right to vote and hold office–to Catholics and non-Christians. Enacted during the frenzy over the possible return of the Catholic pretender James III to the English throne, this statute was reaffirmed by the General Assembly in the legal codifications of 1730, 1745, and 1767. (In 1756, when Catholic France was menacing the northern settlements during the French and Indian War, Rhode Island enacted a statute ordering an oath of allegiance and abjuration to be administered to suspicious persons and decreed that any who refused to subscribe be proceeded against as “popish recusants and have their goods confiscated.” Not until 1783, after the benevolent occupation of Rhode Island by Count Rochambeau and his French forces, did the General Assembly remove its arbitrary disqualification of Catholics as voters.
The act that accomplished this, however, neglected to define the civil status of those professing the Jewish faith. The Rhode Island colony’s refusal to naturalize Jews was another blemish on the charter’s guarantee of religious equality. Although Jews enjoyed freedom of worship, none, however qualified or competent, was ever made a freeman of the colony. On the issue of naturalization, both the Superior Court and the General Assembly, in 1761 and 1762 respectively, rejected the citizenship petitions of wealthy Newport merchants Aaron Lopez and Isaac Elizer because they were non-Christians.
In August 1790, when George Washington visited Rhode Island following its ratification of the Constitution, he was greeted by many well-wishers, including the congregation of Newport’s Touro Synagogue. In a grateful response to his warm welcome from the Jewish community, the president later wrote the congregation a now-famous letter, paraphrasing the missive written to him by Moses Seixas, which prophesied that the new nation would provide the world with a model society where all people would enjoy liberty and the natural right to respect from their fellows. Washington also assured his Jewish audience that “happily the government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens.” Happily also, Rhode Island’s legislature fulfilled Washington’s aspirations in 1798 by passing “An Act Relative to Religious Freedom and the Maintenance of Ministers,” which finally removed the civil disabilities imposed against Rhode Islanders of the Jewish faith.
At the same time that the religiously motivated violation of the charter’s spirit was corrected, defects in the substance of that document became evident. By the turn of the 19th century, Rhode Island had begun a transformation from an agrarian and commercial commonwealth to an industrialized and urbanized state. This economic change produced a shift in population to towns in the northeastern quadrant of Rhode Island, especially Providence. However, the charter had a fixed formula for apportioning deputies (i.e., representatives) in the General Assembly that gave preference to the four original towns. Newport had six deputies, while Providence, Portsmouth, and Warwick were each allocated four. All towns created subsequent to 1663 had only two seats in the lower house of the all-powerful state legislature.
In the early decades of the 19th century several of these newer towns, especially those in the Blackstone Valley, expanded rapidly as a result of their industrialization and began to demand reapportionment. In 1840, Providence had nearly three times the population of Newport, and “old” Smithfield had more than five-and-one-half times the population of Portsmouth but only one-half that island town’s representation in the General Assembly. In effect, the powerful General Assembly was dominated by agrarian interests and/or static and declining towns.
In addition to its inflexible and increasingly unequal apportionment, the charter lacked procedures for its amendment. Therefore, reforms such as the removal of the statutory real estate requirement for voting and officeholding, a restriction insisted upon by the rural majority in the legislature, could only be achieved by replacing the charter with a more liberal and modern written state constitution.
A third shortcoming of the unamenable basic law was the absence of a bill of rights. Rhode Island had enacted a statutory declaration in 1798 when it removed the impediment to full Jewish citizenship, but reformers demanded a more permanent guarantee of individual liberties.
Developments in the early decades of the 19th century revealed these evolving inadequacies of the royal charter. Rhode Islanders of the Revolutionary generation and their individualistic forebears had been ever-mindful that they enjoyed near autonomy within the Empire and broad powers of self-government within their colony. They were also keenly aware that their self-determination flowed in large measure from the munificent charter of Charles II. Thus they harbored a passionate attachment to the document and defended it against all comers. They allowed it to weather the Revolutionary upheaval, and retained it as the basic law of the state until 1843–a point far beyond its useful life.
The liberality of the 17th-century charter prompted Rhode Islanders to preserve and enshrine–or should we say embalm it–until the patent became, in the eyes of Thomas Wilson Dorr and other political reformers of the 19th century, a reactionary relic of a bygone age. The legislature’s steadfast opposition to meaningful change prompted Dorr and his associates to launch America’s most famous democratic revolution–the so-called Dorr Rebellion–to replace the charter with a written state constitution. This upheaval is the cruel irony and the great tragedy of Rhode Island’s constitutional history.
The constitution of 1843, the written basic law that replaced the royal charter after its 180 years of operation and displaced Dorr’s much more equal rights-oriented “People’s Constitution,” imposed a real estate requirement for voting and office holding upon naturalized citizens (i.e., Irish-Catholic immigrants) while exempting the native born from this necessity. Therefore, despite the abandonment in 1798 of all religious qualifications under the charter regime, those who drafted the “Law and Order” constitution of 1843 imposed the requirement of native birth to discriminate against a religious group, much in the way that post-Civil War Southerners used grandfather clauses and literacy tests to circumvent the Fifteenth Amendment’s ban on racial discrimination.
Rhode Island’s nativistic real estate requirement was eliminated in 1888 by the Bourn Amendment, but only because it had ceased by then to be advantageous politically to the ruling Republican party. It is sad that even in the land of Roger Williams and Dr. John Clarke, religious bigotry delayed the attainment by some Rhode Islanders of equal civil rights under our laws until late in the 19th century.
-Dr. Patrick T. Conley