The conspiracy to defeat the liberation of Gov. Dorr, or, The Hunkers and Algerines identified, and their policy unveiled : to which is added, a report of the case ex parte Dorr : comprising motion to Supreme Court of the United States : petition of sundry citizens of Rhode Island : affidavits showing the treatment of Gov. Dorr by the inspectors of the prison : argument of counsel, and the decision of the court

Front matter

CODV 2 -

-.

o >

I

PETITION OF J. C. DAVIS, j; S. EDDY, AND FORTY-FOUR OTHERS.

To the Chief Justice, and the Associate Justices of the Supreme Court of the United States, holden at Washington, being the present seat of the National Government, on the first Monday of December, in the year of our Lord, one thousand eight hundred and forty-four, — or to either of the Justices of the said court in either of the several circuits.

Complain, and respectfully represent the undersigned, citizens of the State of Rhode Island and Providence Plantations, near friends of Thomas Wilson Dorr.

That at the Term of the Supreme Judicial Court of the said State of Rhode Island, and Providence Plantations, holden at Nevi'port, in and for the county of Newport in said State, on the fourth Monday of August, in the year of our Lord one thousand eight hundred and forty-two, an Indictment for the crime of Treason against the said State of Rhode Island and Providence Plantations, was found by the Grand Jurors of the said State of Rhode Island and Providence Plantations, and in and for the body of the county of Newport, against the said Thomas Wilson Dorr, of the city of Providence, in the county of Providence, Attorney and Counsellor at Law, in which Indictment the said Thomas Wilson Dorr is charged in four several and distinct counts, that he, being an inhabitant of and residing within the State of Rhode Island and Providence Plantations, and owing allegiance and fidelity to said State, did, on the several days and times set forth in the several places therein specified, wickedly, and traitorously, unmindful of his allegiance aforesaid, conspire to levy, and did actually levy, war against the State of Rhode Island and Providence Plantations. Which said indictment is made and has become a matter of record in said court, as by a copy thereof, herewith presented, and verified under the seal of said court, fully appears. And the undersigned citizens, as aforesaid, further complaining, say, that at an adjourned term of the aforesaid Supreme Court, begun and holden at Newport aforesaid, on the twenty-ninth day of February, in the year of our Lord one thousand eight hundred and forty-four, the said Thomas Wilson Dorr was brought into court, and arraigned on said indictment, and caused to plead thereto, and that afterwards such proceedings were had on said indictment, that at the March term of the Supreme Court of the State of Rhode Island and Providence Plantations, holden at Newport aforesaid, by adjournment, on the twenty-sixth day of April, 1844, a Jury was completed and empannelled in the way and manner as in the records of said court appears, for the trial of the said Thomas Wilson Dorr on said indictment ; and the undersigned further complain and allege that such further proceedings were had on said indictment, and the trial of Thomas Wilson Dorr, thereon, that on the seventh day of May, 1844, the Jury so empannelled as aforesaid, under the direction of said court in matters of law, returned a verdict of guilty against the said Thomas Wilson Dorr, which the said court ordered to be, and which was received and recorded ; and which said verdict has also become matter of record in said court.

And the undersigned further complain and allege, that, notwithstanding all the said Thomas Wilson Dorr's complaints, objections, and remonstrances, made as well by the counsel of the said Thomas Wilson Dorr, as by said Thomas Wilson Dorr himself, the said Supreme Court, on the twenty-fifth day of June, one thousand eight hundred and forty-four, proceeded to, and did sentence the said Thomas Wilson Dorr to be imprisoned for the term of his natural life, in the State's Prison at Providence, in the county of Providence and State aforesaid, and there kept at hard labor in separate confinement, as by the full record of said Indictment, and the proceedings thereon, and the verdict of the Jury aforesaid, and the judgment and sentence of said Court, and a copy of which record, duly certified under the seal of said Court, and accompanying this complaint, fully appears, and under which judgment and the sentence of said Court the said Thomas Wilson Dorr is now suffering imprisonment. And to which said rulings and directions in matters of law, the said Thomas Wilson Dorr, by his counsel on his behalf, offered and tendered a Bill of Exceptions as by the record appears, and which herewith accompanies said Petition ; which said record of said judgment of said Court so as aforesaid, certified, and authenticated, is now remaining in said Court in full force, and is in no way annulled or reversed.

And the undersigned further aver that in the record of said Indictment, and of the proceedings thereon, and of the judgment and sentence of said Supreme Court, manifest error hath intervened. And that said Indictment so as aforesaid found, and the proceedings had thereon, and the verdict of said Jury so found, and the judgment so rendered thereon, and the sentence so awarded thereon, against the said Thomas Wilson Dorr and the execution thereof so as aforesaid carried into effect upon his person, are in violation of, and opposed to, and subversive of the Constitution of the United States, are wholly erroneous in the following particulars : —

First. It appears from the record aforesaid, that the said Supreme Court did rule and direct the Jury as the law by which they were by their oaths bound, that the treason charged in said Indictment, to wit, the levying of war against an individual State, might be committed against an individual State. Whereas, the said Thomas Wilson Dorr avers that the treason set forth in said indictment, and the overt acts therein charged, to wit, the levying of war upon and against the State of Rhode Island and Providence Plantations, is a levying of war against the United vStates, according to the true intent and meaning of the Constitution of- the United States, and can only be committed against the United States, and can only be inquired of in the Circuit Court of the United States for the first circuit, on an indictment found by the Grand Jury of the United States, duly and legally summoned, empannelled and charged to inquire for the United States for said first circuit, against any person guilty of said crime, and can only be tried in said Circuit Court by a Jury duly empannelled and sworn to try the same ; and because any treason, by levying war against a State, and the offence thereby committed against the State, is merged in the treason committed against the United States.

Secondly. Because the people who are citizens of a State have a right by the laws of nature to frame for themselves a government when that under which they live is found, on experiment, to be unequal and oppressive, — and under the Constitution of the United States, to alter, amend, or frame a Constitution of Government for themselves, provided only that it be Republican ; and because the said Thomas Wilson Dorr offered to prove by competent evidence, that a majority of the adult male citizens of the United States resident in the State of Rhode Island and Providence Plantations, had framed and adopted for the Government of said State, a Republican form of Government which had gone into operation, by the choice and qualification of said Thomas Wilson Dorr as Governor, and by the choice and qualification of other officers provided for by said Constitution, which proof the said Court rejected, and thereby violated the fourth section of the fourth article of the Constitution of the United States, which provides that the United States shall guarantee to every State in this Union, a Republican form of Government.

Thirdly. Because it appears from the whole record, that if the said Thomas Wilson Dorr, wrongfully, and without any justifiable authority, levied war, it was a war against the United States only, and therefore that he could not, according to the Constitution of the United States, and without a violation thereof, he held amenable to be tried for said crintie, by any State Court.

Wherefore the aforesaid citizens of Rhode Island whose names are undersigned, pray that a writ of error in behalf of the said Thomas Wilson Dorr, may go to the Judges, or some of them, of the SupremeCourt of the State of Rhode Island and Providence Plantations, or that a writ of habeas corpus may issue forthwith to bring out the said Thomas Wilson Dorr, and give him an opportunity to sign a petition for a writ of error on his own behalf, to the end that the whole record of said Indictment and trial and judgment, may be certified in due form of law to the Supreme Court of the United States, and that the errors aforesaid therein, and which are set forth in this petition, may be corrected, and the judgment in the premises so rendered by the said Supreme Court of the said State of Rhode Island and Providence Plantations, may be reversed and annulled and held for naught, and the said Thomas Wilson Dorr be released from his said imprisonment so suffered in violation of the Constitution of the United States.

[Signed by] JOHN S. EDDY,

JOHN C. DAVIS, and 44 others.

II.— AFFIDAVIT OF SAMUEL FESSENDEN.

I, Samuel Fessenden, of Portland, in the county of Cumberland and State of Maine, counsellor at law, on oath state : That I was employed by the friends of Thomas Wilson Dorr, confined in the State prison in Providence, Rhode Island, pursuant to the sentence of the Supreme Court of Rhode Island and Providence Plantations, on a conviction in said court on an indictment charging said Dorr of having committed the crime of treason by levying war against said State, as a counsellor at law, practising in the circuit court of the United States, to render my aid in carrying up the case of the said Thomas Wilson Dorr, on writ of error to the Supreme Court of the United States, for revision and correction of the errors as stated and set forth in the record of his, said Dorr's trial and conviction ; that, in the discharge of my duty by virtue of said employment, I called on Mr. Justice Story of the Supreme Court of the United States, who informed me that, as an indispensable preliminary to the granting a writ of error, a petition signed by said Dorr must be presented, praying that a writ of error might be granted.

I then drew up a petition — such as I judged to be suitable and proper for said Dorr to sign — and, in company with Francis C. Treadwell, Esq., presented said petition to Thomas M. Burgess, Esq., mayor of the city of Providence, and, by virtue of his office, chairman of the board of inspectors of the State's prison in Providence, where said Dorr is confined, with the request that said Dorr might have said petition placed in his hands for perusal, and with liberty to sign the same should he think proper.

The said Burgess then informed me that he had no idea that said Dorr would be permitted to see or sign said petition ; that he himself should be opposed to it ; that it was, as he believed, the determination of the authorities of the State that said Dorr should have no opportunity to carry up his case by writ of error, and that they did not intend that there should be any interference on behalf of said Dorr for that end. With much persuasion, I induced the said Burgess, the mayor, to take said petition, and consult with the other members of the board of inspectors. He took the petition for that purpose, saying at the same time that he knew they would not permit it, and that he, as one of the board, should not consent to have said Dorr see or sign said petition.

On this twentieth day of November, I received the annexed letter from said

Burgess, with the petition which I handed to him ; and the sheets containing said petition I have marked with the initials of my name.

SAMUEL FESSENDEN.

United States of America,

District of Maine.

On this 20th of November, 1S44, personally appeared before me the above named Samuel Fessenden, and made oath to the truth of the facts stated in the above affidavit by him subscribed.

ASHUR WARE, Judge of United States for the District of Maine.

III. Providence, November 18, 1844

Gentlemen : — I have seen several of the inspectors of the State prison this afternoon, who agree with me, that we ought to take no action upon your request ; because it is so very similar in its character to one which the General Assembly, at their October session, virtually refused to grant.

I enclose the papers, and remain, respectfully, your obedient servant,

THOMAS M. BURGESS.

To Messrs. Fessenden and Treadwell.

[The petition referred to by General Fessenden, marked S. F.,is the original of which the one above is, with very slight variation, a transcript.]

IV.— AFFIDAVIT OF JOHN S. EDDY.

I, John S. Eddy, of city and county of Providence, and State of Rhode Island, gentleman, on oath state, that on the twenty-fifth day of November, A. D. eighteen hundred and forty-four, in company with Francis C. Treadwell, Esq., I called upon James Fenner, Esq., Governor of the State of Rhode Island aforesaid, at his residence in Providence aforesaid, when the said Treadwell presented to said Governor Fenner a petition addressed to the Chief Justice and Associate Justices of the Supreme Court of the United States, or to either of said Justices in either of the circuits, praying that a writ of error may be granted in the case of the State of Rhode Island against Thomas Wilson Dorr, confined in the State's prison in Providence, Rhode Island, aforesaid, pursuant to the sentence of the Supreme Court of Rhode Island and Providence Plantations, on a conviction in said court, on an indictment charging said Dorr with having committed the crime of treason against the said State, and requested the said Governor Fenner to permit said Dorr to read said petition, and to sign the same, if he, the said Dorr, should desire to do so. That the said Governor Fenner replied to said Treadwell, that he, said Governor Fenner, had no power to hold intercourse with said Dorr, or with any other person confined in the State prison aforesaid, nor to permit any other person so to do. That by the laws of the State of Rhode Island aforesaid, the inspectors of said prison were the only persons who had power to permit such intercourse, or to allow any person to see any prisoner confined in said prison ; and the said Governor Fenner, thereupon, for the rea.sons above stated, refused to give permission for the said Dorr to sign or to see the petition aforesaid.

JOHN S. EDDY. 2'Ac State of Rhode Island and Providence Plantations, Providence county, ss. In Providence, this twenty-sixth day of November, A. D. eighteen hundred and forty-four. Subscribed and sworn to, by John S. Eddy. Before me,

HENRY MARTIN,

Notary Public.

v.— AFFIDAVIT OF F. C. TREADWELL.

I, Francis C. Treadwell, of Portland, in the county of Cumberland, and State of Maine, Counsellor at Law, on solemn affirmation say, that I have been, and now am, employed by the friends of Thomas Wilson Dorr, confined in the State Prison in Providence, Rhode Island, pursuant to the sentence of the Supreme Court of Rhode Island and Providence Plantations, on a conviction in said Court on an indictment charging said Dorr with having committed the crime of Treason by levying war against said State, to render my aid in carrying up the case of the said Thomas Wilson Dorr, by writ of error to the Supreme Court of the United States, for revision and correction of the errors as stated and set forth in the record of said Dorr's trial and conviction. That about the latter part of the month of July last past, in the discharge of my duty by virtue of said employment, I called on Walter S, Burgess, Esq., of Providence aforesaid, Counsellor at Law, and on the late Samuel Y. Atwell, Esq., of Glocester, Counsellor at Law, then at Providence, but since deceased, both of whom informed me, that in connection with George Turner, Esq., of Newport, in the State of Rhode Island aforesaid, Counsellor at Law, they, as Counsel for said Dorr, were about to make application to the Board of Inspectors of the State Prison, at Providence aforesaid, for liberty to consult with said Thomas Wilson Dorr, in the prison aforesaid, in relation to carrying the case aforesaid, by writ of error to the Supreme Court of the United States.

That both said Burgess, and said Atwell, requested me to call on them again, and also on said Turner, and confer freely with them all upon the subject of carrying the case of the said Dorr by writ of error to the Supreme Court of the United States as aforesaid, and that both said Burgess, and said Atwell, promised to let me know the result of their said application to the Inspectors of the Prison aforesaid, early, or immediately upon its communication to them ; and both said Burgess and said Atwell requested me not to take any legal proceedings, not even to get a copy of the Record aforesaid, until they should receive an answ^er from the inspectors of the prison aforesaid, and should publish a report of the Trials of the case aforesaid, which they then had in press for immediate publication. That in pursuance of the request, so made by the said Burgess, and the said Atwell, I called several times on the said Burgess, and conversed with him freely upon the case aforesaid ; and that also, in pursuance of the request made as aforesaid, I called several times at the American Hotel, in Providence aforesaid, the lodging-place of the said Atwell, and in answer to my inquiries for said Atwell, was told by the keeper of the said House, that said Atwell was in his room, too much indisposed to see company. And this affirmant further says, that on a certain day in the month of August last past, he met the said Turner, at the office of said Burgess, in Providence aforesaid, when said Turner requested this affirmant to call before eleven o'clock on the morning of that day, on said Atwell, at said American house, or hotel, and converse with said Atwell upon the case aforesaid, and upon the propriety of sueing out a writ of habeas corpus, in a certain contingency — that on the same day I called at the Hotel aforesaid, and inquired of the keeper thereof for said Atwell, and was told by said keeper, that said Atwell immediately after parting with said Turner, at breakfast time that morning, had met with an unexpected opportunity to return to his residence in Glocester, and had departed thence some hours before, from which time to the day of his decease, as this affirmant is informed and believes, the said Atwell never returned to Providence aforesaid. And this affirmant further says, that on or about the twenty-sixth day of August last past, the said Walter S. Burgess, accosted this affirmant in the street at Providence aforesaid, and then and there said, that he the said Burgess had received from the Inspectors of the State Prison aforesaid, an answer, de-

Dying the Counsel of said Dorr the liberty to consult with him upon the subject of taking the case aforesaid, by writ of error to the Supreme Court of the United States, and that himself and said Atwell, and Turner, had in such case agreed to abandon the case, and without said Dorr's personal instructions, they, said Atwell, Turner and Burgess, would do nothing further in the matter, and that the inspectors aforesaid, had referred the request, or petition, to the Judges of the Supreme Court, and to the Legislature of the State, which said Burgess pronounced to be a rejection of the said petition. And the said Burgess then and there also stated, that he, said Burgess, had no idea of going to Washington with a writ of error, upon a case for a man, when he did not know whether the man wished to have the case go there or not. That it might take five years to get a decision upon the case, and that the carrying it up thence might operate to the prejudice of the said Dorr in obtaining a pardon from the Legislature of the State of Rhode Island aforesaid. And the said Burgess then and there further stated, that this affirmant could now carry up the case by writ of error as aforesaid, if he thought proper so to do ; that they, the said Burgess, Atwell and Turner, had before agreed to give up the case, in case the Algerine Inspectors of the State's Prison aforesaid, should refuse to let them, the said counsel, consult with the said Dorr ; and that all objections to the carrying up of said case by writ of error as aforesaid, by this affirmant, if he knew of any way to do it without first obtaining permission from the inspectors of the prison, or other authorities of Rhode Island aforesaid, on the part of said Burgess, Atwell, and Turner, were now removed, and the way all clear for the action of this affirmant in the premises.

And this affirmant further says, that on the ninth day of September last past, by the request of many of the near friends of the said Thomas W. Dorr, he went to Portland in the State of Maine, aforesaid, and engaged the services of Samuel Fessenden, Esq., Counsellor at Law, in the carrying up by writ of error to the Supreme Court of the United States, the case of the said Dorr ; and on the twelfth day of September last past, as appears by his minutes, then made, this affirmant went to Newport, in the State of Rhode Island aforesaid, to the office of the Clerk of the Supreme Court of Rhode Island aforesaid, and engaged the Clerk of said Court to make a copy of the record aforesaid, in the case of the said Dorr, and urged said Clerk to make the copy of said record speedily ; which said Clerk promised to do ; and this affirmant offi^red to pay said Clerk then in advance, for the copy of said record ; which payment in advance said Clerk refused to receive ; and when three weeks afterwards this affirmant went from Providence to Newport aforesaid, for the said copy of said record, and the Clerk had not begun to make it out, and could not or would not say when he would either begin or finish the said copy of said record. And this affirmant further says, that in compliance with the advice of several of the friends of said Dorr, at Newport, and elsewhere, who feared that a copy of said record could not otherwise be obtained in time to be available at the then next term of the Supreme Court of the United States, he was under the necessity of employing, at an expense of twenty-five dollars, a man to go into the office of the said Clerk, of said Court, at Newport aforesaid, and make a copy of said record from many detached papers as they were handed him by said Clerk, which caused a delay as nearly as this affirmant can now recollect, of more than three weeks longer, and several inconvenient and expensive journeys to Newport ; and still the said Clerk charged and received the official price for making a copy of said record.

And this affirmant further says, that on the aforesaid twelfth of September last past, he saw at Newport aforesaid, the said George Turner, at his office whicii is contiguous to the office of William Gilpin, the Clerk of the Court aforesaid, and told said Turner that he, said affirmant, had come lO the office of the Clerk of said Court, to obtain a copy of said record, for the purpose of carrying up the case of said Dorr by writ of error to the Supreme Court of the United States. That said Turner made no objection thereto, but then and there said, that said Atwell, Burgess and himself, had previously agreed that if the inspectors of the said prison should refuse to let them consult personally, with said Dorr, they, the said counsel, would give up the case of the said Dorr, and make no further attempt to carry up the said case by writ of error to the Supreme Court of the United States ; and the said George Turner then and there offered his services, and told this affirmant he would freely yield them to the Clerk of the Court aforesaid, in preparing or arranging the papers from which the record was to be made out, and would assist said Clerk, and aid him in making, as speedily as possible, a copy of the said record.

And this affirmant further says, that in the month of August last past, when the application of the said Burgess and Turner, for permission to consult with said Dorr, was pending before the inspectors of the prison aforesaid, that he, this affirmant, met with one of said inspectors, by the name of Cranston, whose first name he believes is Barzilla, but of that is not certain, when said Cranston, at Providence aforesaid, told this affirmant that the application of said Burgess and Turner was not definitely acted upon by said inspectors ; that he, said Cranston, was not in favor of granting the permission asked for in said application, and he believed it ought to be, and would be, refused ; and said if I should make a similar application, it would also, without doubt, be refused ; and the said Cranston then asked me why I did not arm myself, and force my way into the prison. The said Cranston further said, that he did not believe the case of said Dorr could be taken by any means, before the Supreme Court of the United States, without the consent of the authorities of Rhode Island, in permitting counsel to consult with said Dorr; and that consent he believed could never be had. That he was opposed to it, and he believed both the Supreme Court, and the Legislature, were also opposed to it.

And this affirmant further says, that some days after the interview with said Cranston above named, he met said Cranston at Providence aforesaid, when said Cranston told this affirmant that the Inspectors of the prison aforesaid had refused to permit said Burgess and Turner to consult with said Dorr, or hold any communication with him whatever. That they, said counsel, or myself, might carry up the case of said Dorr to the Supreme Court of the United States if we could. That he did not believe we could do it without the consent of the authorities of Rhode Island, and that consent he felt assured we should never be able to obtain.

And this affirmant further says, that on or about the eleventh day of November last past, in company of Henry Lord of Providence aforesaid, this affirmant called upon Thomas M. Burgess, Esq., mayor of the city of Providence, and by the hand of said Henry Lord, presented to said Burgess, mayor of Providence, aforesaid, a written request for permission for Samuel Fessenden, Esq., and myself, to visit said Dorr in said prison, and confer with him in all matters needful for carrying his case before the Supreme Court of the United States ; a copy of which paper, with a copy of the certificate of said Lord, annexed thereto, marked A, is hereunto annexed. And this affirmant further says, that said Thomas M. Burgess stated that he was the chairman of the inspectors of the State Prison aforesaid, that the Board would not have a regular meeting until January next ; after the next meeting of the Legislature of the State ; that the inspectors would, beyond question, refuse the application unless the Judges of the Supreme Court of Rhode Island should certify that the interview was necessary. That they, the inspectors aforesaid, had done so upon the application of Messrs. Burgess and Turner, and would doubtless do so now in this case. That he would show the application to some of the members of the Board, but he had no doubt of their concurrence with him in refusing to grant the interview applied for. And this affirmant further says, that on the eleventh day of November last, he received from the said Burgess, mayor of Providence aforesaid, a permit to visit the State Prison aforesaid, and in company with Henry Lord, went there and saw the prisoners at work, apparently painting fans. That said prisoners were sitting with their backs towards the spectators, who, looking through an iron grating, could not see the faces of the prisoners. That farthest off from the grating aforesaid, this affirmant saw a person sitting at work in an arm-chair, whom, from the color of his hair and the general appearance of the back part of his head and shoulders, this affirmant believes to have been the said Thomas Wilson Dorr, but the distance was so great, probably twenty yards or more, that this affirmant cannot, from his own observation, be certain of the identity of said Dorr. This affirmant further states, that a keeper is stationed in the room with the prisoners, facing the latter, so that, at a glance, he can see all their motions ; and that the regulations of the prison aforesaid, forbade a prisoner to speak to a spectator, or to a fellow-prisoner, under penalty of being deprived of food and water for twenty-four hours, or of corporal punishment.