The following article by Dr. Patrick Conley was published in the Rhode Island Bar Journal May/June 2011 issue.

THE ORIGINS OF THE GOVERNOR'S PARDONING POWER

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 February 1845, when Gordon was hanged after a conviction based upon conflicting and circumstantial evidence in a trial marred by the anti-Irish Catholic animus of the press and the rulings and jury charge of a highly-prejudicial judge, Law and Order governor James Fenner refused the request for a reprieve presented to him by Gordon 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.

When Gordon was executed in the yard of the old state prison (where Providence Place Mall now stands), Thomas Dorr was an inmate, 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 grassroots liberation movement resulted in his release (but not his pardon) after 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, 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.

With liberation accomplished, 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, 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, they responded to a forty-three page report by South Kingstown’s Thomas Robinson Hazard and long-time 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, in the state elections of April 1853, Governor Allen emerged victorious, 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. They responded to their urban wing’s support of equal rights for Irish immigrants as 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 party.

The other harbinger of defeat for the reformist Democrats was the emergence in 1854 of the Know-Nothing or nativistic American Party. This brief movement won the allegiance of many native-born workingmen who had previously supported political reform. In April 1854, the Democrats were = ousted and relegated to a minority status that they maintained 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. 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 exonerate) had been deemed unlikely by the Dorr Democrats, so in early 1854, before succumbing to the tidal wave of nativism, they passed an act reversing and annulling the judgment of the Rhode Island Supreme Court in Dorr’s treason trial. The succeeding legislature promptly sought an advisory opinion from that court. Not surprisingly, it 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, newly elected Know Nothing Governor William W. Hoppin, and those nativists who came to power in April 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.

Patrick T. Conley
RI Essays and Exhortations\pardon of john gordon