In 1986 I published an essay entitled "Death Knell for the Death Penalty: the Gordon Murder Trial and Rhode Island's Abolition of Capital Punishment. ” It won the first annual writing award of the Rhode Island Bar Journal, but it did little else until I showed it to biographer and playwright Ken Dooley a few years later. Ken, a Cranston native of Irish American ancestry, grew up about a mile from the still extant mansion of Amasa Sprague.
In the early 1990s Ken lived in Bristol, working with my friend Halsey Herreshoff in creating the America’s Cup Hall of Fame as an adjunct to the Herreshoff Marine Museum. Since Ken and I had been classmates at Providence College, we renewed our acquaintance. At dinner one evening in 1993 I mentioned my essay to him, a revelation that was prompted by my review of a new book by Charles and Tess Hoffman on the Gordon murder trial--Brotherly Love: Murder and the Politics of Prejudice in Nineteenth-Century Rhode Island. Apart from a far-fetched conclusion that Senator William Sprague may have commissioned the murder of his prosperous brother, the book had considerable merit. Ken felt that this notable legal episode would make a great play, so I gave him my essay and a copy of the Hoffmans’ book. Shortly thereafter Ken moved from Bristol, and fifteen years passed before we met again. In 2009 he came to the Fabre Line Club with a script entitled "The Murder Trial of John Gordon"; In response to his request that I review it for historical accuracy, I made several suggestions and corrections and sent the work back to Ken.
By January 2011 Ken was ready to present the fruit of his labor at the Rhode Island Center for the Performing Arts in the splendidly renovated old Park Theater near Ken’s boyhood home. Ken gave a talk to the Fabre Line Club and to a gathering in Newport to publicize the play prior to the grand opening of his twenty-three-actor production on January 14. He stirred the interest of state representative Peter Martin at the Newport session, and Martin was so moved by the fate of John Gordon that he sponsored a General Assembly resolution ask ing the legislature to exonerate, and the governor to pardon, John Gordon.
This cause gained considerable attention and momentum. It attracted such local Irish American historians as Dr. Scott Molloy and Dr. Donald Deignan; and it won vigorous support from the office of the Rhode Island Public Defender, especially attorney Michael DiLauro, who wrote a very able legal brief supporting Martin’s resolution.
The most amazing response of all came from the Providence Journal, the newspaper infamous for its mid-nineteenth-century anti-Irish Catholic animus, the paper that had convicted John Gordon in print months before his trial. A February 6, 2011, editorial admitted that "The Journal’s own opposition to the Dorrites and its coverage of the Gordon trial, fueled by class sentiment and suspicion of immigrants in the 19th Century, were not the newspaper’s finest hour. ” Having been the first historian to expose and to elaborate upon the ethnoreligious nature of the opposition to Thomas Dorr’s People’s Constitution via my 1977 book Democracy in Decline, I found the Journal’s sugar-coated confession was a source of great satisfaction and surprise.
Although my 1986 essay had dealt extensively with the abolition of the death penalty as a result of John Gordon’s execution, Peter Martin’s call for a pardon prompted me to analyze a nearly simultaneous, but completely neglected, aspect of the tragic saga of Gordon and Dorr. In support of the campaign to vindicate John Gordon, I presented the following conclusions concerning the governor's power to pardon to the General Assembly on March 30, 2011.
The current legislative request, sponsored by Newport representative Peter Martin, for Governor Lincoln Chafee to pardon John Gordon, an Irish American immigrant, hanged in February 1845 for the murder of textile magnate Amasa Sprague, will attract state and national attention in the weeks ahead. There is a certain irony to this developing scenario, ignited by writer Ken Dooley’s locally produced play, because the pardoning power now wielded by the governor in Article IX, Section 13, of the state constitution was conferred upon him in 1854 by the same group of reformist legislators who abolished the death penalty in 1852. I contend that both actions by so-called Dorr Democrats were made with John Gordon’s execution in mind. The memory of Gordon certainly was the foremost concern of those who voted for the death penalty ban. The convictions of Gordon and Thomas Wilson Dorr inspired these same legislators to propose a constitutional mechanism for pardoning a person unjustly convicted of a crime.
Under the Royal Charter of 1663, the governor was a mere executive agent of the General Assembly. The charter was replaced in 1843 by the conservative Law and Order Constitution in the wake of the Dorr Rebellion. Drafted mainly by Whigs who feared executive power (as did their English namesakes), the new constitution kept that branch of government in a weakened condition. However, the governor did receive the "power to grant reprieves, after conviction, in all cases, except those of impeachment, until the end of the next session of the General Assembly. ” That provision is Article IX, Section 4, of our present constitution.
In January 1845 the General Assembly refused to grant a petition to stay John Gordon’s execution unti= l the trial of John’s brother Nicholas, which could produce new evidence. It was signed by 377 citizens, inc luding Roman Catholic bishop William Tyler (a Yankee convert) and the pastors of Providence’s First Baptist Church and the First Congregational Church. On February 10, 1845, Law and Order governor James Fenner refused the request for a reprieve presented to him by Gordon’s lawyers (all of whom were associates and colleagues of Thomas Wilson Dorr). Of course, a reprieve is only a temporary postponement, and in the immediate aftermath of the nativistic furor generated by the equal rights provisions of Dorr’s aborted People’s Constitution, this remedy would only have delayed the inevitable.
On February 14, 1845, John Gordon was hanged pursuant to a murder conviction based upon conflicting and circumstantial evidence in a trial marred by the anti-Catholic animus of the press and the rulings and jury charge of a blatantly prejudicial judge. On that Valentine’s Day justice was massacred.
When Gordon was executed in the yard of the old state prison (where Providence Place Mall now stands), Thomas Dorr was an inmate at the prison, having been convicted of treason against the state in a Supreme Court trial and sentenced to life imprisonment "at hard labor in separate confinement” by Chief Justice Job Durfee, the same partisan judge who had condemned John Gordon to death. Fortunately for Dorr, a grass-roots liberation movement resulted in his release (but not his pardon) after he had spent twenty months in prison.
In the presidential election of 1844, national Democrats used the slogan "Polk, Dallas, and Dorr” to dramatize the liberation effort. In Rhode Island, Charles Jackson, the great-grandson of an Irish Protestant immigrant from Kilkenny, led a Dorr Liberation slate to victory in the April 1845 annual state election. During this campaign many voteless Rhode Island women joined the cause. As a result of these combined efforts and a national outcry against Durfee’s harsh sentence, Dorr was freed on June 27, 1845.
Despite the success of the liberation effort, the dominant Law and Order coalition of Whigs and rural Democrats maintained its control of state government during the late 1840s, electing Providence Journal editor and arch-nativist Henry Bowen Anthony governor in 1849 and 1850. Then, as the Whig Party began to divide over the issue of slavery and some rural Rhode Island Democrats returned to the fold, Democratic reformers, led by Dorr’s uncle Philip Allen, came to power in 1851, with Allen winning the governorship and Dorr’s closest friend, Walter S. Burges, securing the post of attorney general, the chief legal advisor to the General Assembly. The momentum of this victory prompted pro-Dorr legislators to enact the state’s first secret-ballot law for the prevention of voter intimidation and to pass a resolution restoring to Dorr his political rights. Then, in 1852, with the travesty of the Gordon trial in mind, they responded to a forty-three-page report by South Kingstown’s Thomas Robinson Hazard and longtime Dorr ally Ariel Ballou of Cumberland and banned the death penalty. State representative Thomas Davis, a manufacturer and philanthropist, led the fight for that reform. A Dublin-born Irish Protestant immigrant, Davis later became a U. S. Congressman.
These early reform measures were passed with some Whig support. However, Governor Allen emerged victoriously in the state elections of April 1853, and his fellow Democrats gained a majority in both the House and the Senate for the first time since the 1830s. Emboldened by their victory, these reform Democrats twice called for the voters to authorize a constitutional convention to remedy what they considered to be glaring defects in the Law and Order Constitution. Ominously, these convention referenda were decisively rejected by the electorate.
Because the Dorrites could not achieve sweeping reform in a convention, they drafted and approved nine constitutional amendments. Their proposed Amendment Four gave the governor the power to pardon. Under the provisions of the inflexible Law and Order Constitution, an amendment to that basic law needed passage by two successive General Assemblies, with a general election intervening, before it could be sent to the electors for approval by a three-fifths vote.
Unfortunately, time ran out for the Dorr Democrats in the April 1854 annual state elections. Their alleged radicalism prompted rural Democratic voters to defect. By the end of the decade these small-town electors were firmly attached to the newly formed and nativistic Republican Party. Responding to the urban Democrats’ support of equal rights for Irish immigrants in the manner that southern Democrats would respond to the push by the northern wing of their party to obtain civil rights for blacks a century later; they defected to the opposition.
The other harbinger of defeat for the state’s reformist Democrats was the emergence in 1854 of the nativistic Know-Nothing or American Party. This brief movement won the allegi= ance of many native-born workingmen who had previously supported political reform. In April 1854 the Dem= ocrats were ousted and relegated to a minority status, where they remained until the so-called "Bloodless Revolution” of 1935--the first year since their 1854 defeat that they were able to control the governorship and both houses of the General Assembly.
Four of the nine amendments proposed by the outgoing Democratic legislature were rejected by the next General Assembly, including an amendment that would have required a simple majority of the popular vote to amend the state constitution. Of the five that did pass, the voters approved three--the first, dealing with the certification of voting lists; the second, vesting the pardoning power in the governor, with the advice and consent of the Senate; and a third, providing for one annual session of the General Assembly at Newport, with its adjournment to Providence. This amendment effectively deprived Bristol, East Greenwich, and South Kingstown of their status as state capitals.
The adoption of the amendment allowing the governor to pardon (which is not the legal equivalent of exoneration) had been deemed unlikely by the Dorr Democrats, so in February 1854, before succumbing to the tidal wave of nativism, the House passed an act by a vote of 39 to 21 reversing and annulling the judgment of the Rhode Island Supreme Court in Dorr’s treason trial. The passage of both the pardoning amendment and Dorr’s exoneration were spearheaded by Representative John Weeden from the North Providence village of Pawtucket, a longtime Dorr supporter. The succeeding legislature promptly sought an advisory opinion from the newly appointed Supreme Court, which not surprisingly ruled that such an act was an unconstitutional infringement upon the judicial process.
During the brief ascendancy of the Dorr Democrats, Henry Anthony’s Providence Journal warned against the dire consequences of removing the "safeguard” in the Law and Order Constitution that required naturalized citizens to own real estate in order to vote or hold office (a restriction not contained in the People’s Constitution). Anthony’s prediction--humorous now, but tragic then--was this: "Rhode Island will no longer be Rhode Island when that is done. It will become a province of Ireland: St. Patrick will take the place of Roger Williams, and the shamrock will replace the anchor and Hope!”
From such men as Anthony, Durfee, the newly elected Know-Nothing governor William W. Hoppin, and those nativists who came to power in May 1854, neither John Gordon nor Thomas Dorr could expect either justice or mercy. The pardoning process set in motion by the Dorr Democrats--a gesture more symbolic than effectual in its application to Dorr and Gordon--has never been applied to either of its first intended recipients. Perhaps its time has finally arrived, because justice has no statute of limitations.
The Gordon murder trial is replete with one-sided evidentiary rulings and prejudicial commentary by Chief Justice Job Durfee. However, history’s evidentia= ry criteria are different from those employed in the courtroom," We have a right as citizens ,” stated famed attorney and legal scholar Alan Dershowitz, "to reject the verdicts of the court”--whether they are convictions (as in the case of John Gordon) or acquittals (as in the Fall River trial of Lizzie Borden)--and decide the historical truth for ourselves. We must keep in mind, warns Dershowitz, of "the limited, though important role of the jury in Anglo-American law. Its verdict decides the case before it on the basis of the admissible evidence. But it does not decide the historical truth. ” The conviction of John Gordon is an excellent example of a divergence between the verdict of a jury and the verdict of history. The latter demands an exoneration of John Gordon as well as his symbolic pardon.