USA > Rhode Island > Rhode Island : three centuries of democracy, Vol. II > Part 24
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The detail of changing names of courts, of increasing or decreasing the number of judges, of defining jurisdiction of superior and inferior courts, of establishing county and other local courts to meet the convenience of the people, constitutes a labyrinth of legal history that appeals to the lawyer seeking precedents more than to the general reader. Incidentally also the emergence of a legal requirement of drawing jurors instead of appointing or electing them as political officers marked the development of a keener sense of the necessity for impar- tial justice. Litigation in Rhode Island courts tended to be lengthy because of the right, gen- erally recognized, to a second jury trial if the first verdict proved unsatisfactory to either party. While two consecutive verdicts for either party were not so conclusive as to estop an appeal or petition to the General Assembly, variations in the verdicts of two juries tended to encourage appeals. It lay within the province of the jury to render a verdict upon both law and evidence, and the practice of lawyers was to appeal directly to the sense of justice or prejudice of the jurors. Twice at least the Assembly attempted to curb the zeal of lawyers, thus : In 1651, provision was made for two lawyers belonging to the court in each town, "sol- emnly engaged not to use any manner of deceit to beguile either court or party." The record lends itself to the interpretation that the lawyers were provided as part of the juridical machin- ery, and placed at the service of litigants. In final analysis the functions of these assigned lawyers would differ little from those of twentieth century lawyers, who aid court and jury to discover facts by careful examinations and cross-examinations of witnesses, and the court to find the principle of law and the approved interpretation or application of it by argument and brief and the collection of precedents. The difference between old and modern practice lies in the emphasis upon the duty of the twentieth century lawyer to advance the interests of his client principally, and to perform the other services incidentally. A later statute, in 1703, provided that no lawyer should be admitted to practice in any of the courts unless first sworn to plead to the merits of the case according to the law, and not from favor nor affec- tion of any person.
The provision in the Constitution that "the judges of the Supreme Court shall, in all trials, instruct the jury on the law," appeared first in a statute enacted in 1827. It was intended to remedy a disregard for law in appeals to juries and in verdicts rendered by jurors. It incorporated in statute as a requirement a practice the origin of which in America is credited to Justice Story of the United States Supreme Court, who, when sitting as a trial judge, not only interrupted proceedings frequently by questioning witnesses and counsel, but also followed the lawyers' addresses to the jury by giving the jury his own view of the law in the form of instructions. As applied rigidly in practice the statute tended to curb the lawyer who asked the jury to return a verdict for his client in spite of the law. In modern practice latitude is permitted in appeals to the jury, and no record of the plea is made by the court stenographer ; but the judge imposes reasonable restraint, and has the last word in his instructions.
*Remington vs. Brenton, appeal to Privy Council.
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Even the courts were not entirely guiltless of disregard for law. Witness the answer by Justice Staples to Abraham Payne, Esq., who when asked to become Reporter of the Supreme Court consulted the judge: "You can take the office if you choose, but we shall make you all the trouble we can. We shall give you no written opinions, unless we are com- pelled to do so. We don't want any reporters or any reports. We mean to decide cases rightly, but we don't want to be hampered by rules, the effect of which would be to defeat justice. We had a petition for a new trial before us in Newport County last term. There was no rule or authority by which we could grant it; but we saw, if we did not grant it, an honest farmer would be cheated out of his farm; and we granted it without giving any reason for doing so." The rugged righteousness of Rhode Island justice, little hampered by pre- cedent nor distressed by rigid adherence to the letter of the law, provided exactly the setting in which a masterful man, of the type to which Stephen Hopkins belonged, would shine as an illustrious judge, though he had not been trained for the profession of law. Not all the judges of the Superior Court were not lawyers, however; the names of lawyers appeared with greater frequency on the lists of judges toward the end of the eighteenth century than when the court was first created.
No SEPARATE JUDICIARY-For the first century, 1647-1747, there was no separate judic- iary in Rhode Island; the Superior Court consisted of the Governor and Assistants. From 1747 to 1843 the Superior Court was separate, but scarcely independent. There could be little independence while election was annual and while an appeal or petition to the General Assem- bly might lead to reversal of a verdict or decision. The insecurity of tenure or frequency of changes of judges appears in the large number of different names in the lists of five who constituted the court at any particular time ; in periods of ten years from 1747 there were fourteen, eighteen, fifteen, sixteen, and fourteen judges, and the average tenure was approxi- mately three years. Exceptions were Stephen Hopkins, fourteen years in three periods, twelve of the fourteen years as Chief Justice; and Thomas Tillinghast, thirteen years as Associate Justice ; Peleg Arnold, sixteen years as Chief Justice; Joshua Bicknall, twelve years as Associate Justice; Walter Cooke, twenty years as Associate Justice, all belong to a later period, beginning with the ratification of the federal Constitution, 1790.
The General Assembly's estimate of the relation existing betwixt it and the separate Superior Court was manifested unmistakably in the proceedings in the General Assembly following the court's judgment in the famous case of Trevett vs. Weeden .* Weeden, a butcher in Newport, refused to sell meat to Trevett, who tendered as payment paper money, which the General Assembly had made a legal tender. Trevett haled Weeden before the Superior Court, which dismissed the complaint for want of jurisdiction, thus sustaining pleas in abatement, alleging (1) that the act of the General Assembly under which the complaint had been made had expired in twelve months by express limitation; (2) that the act of the General Assembly placed the jurisdiction for suits to enforce the legal tender act in special courts without jury trial, and not in the Superior Court; and (3) that the act of the General Assembly was unconstitutional, and therefore void, because it denied the right of trial by jury. The Chief Justice, Paul Mumford, gave no reason for the decision, which was "that the said complaint does not come under the cognizance of the justices here present and that the same be and is hereby dismissed." The decision might be sustained expressly on the sec- ond plea in abatement, that jurisdiction had been assigned to other courts. But the practice of Rhode Island courts in not adhering strictly to decisions of bare legal points ; the remarks of two of the judges, David Howell, that the statute was "repugnant and unconstitutional," and Thomas Tillinghast, to the effect that trial without jury was repugnant to the law of the
*Chapter XIV.
ADMINISTRATION BUILDING, BROWN UNIVERSITY, PROVIDENCE
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land; and particularly the impassioned pleading of General James Varnum, as counsel for Weeden, that the legal tender act was an invasion of human and constitutional rights, followed by newspaper reports that emphasized the address, sustained an impression in the public mind that the Superior Court had defied the General Assembly. Thereupon the General Assembly resolved, "whereas the justices of the Superior Court of Judicature have by a judgment declared and adjudged an act of the supreme legislature of the state to be uncon- stitutional and so absolutely void," to summon the judges to appear before the Assembly to show cause for their decision. The judges appeared, explained the decision upon the legal issue squarely presented, want of jurisdiction, and then continued by asserting that they owed no responsibility for decisions to the General Assembly. "I never did, I never will," said Justice Joseph Hazard, "depart from the character of an honest man to support any meas- ures. .... It is not possible to resist the force of conviction. The opinion was dictated by the energy of truth. I thought it right-I still think so. Be that as it may, we derived our understanding from the Almighty, and to Him only are we accountable for our judgment." A motion to remove the judges from office did not prevail, and they were excused from further attendance on the session of the General Assembly as being not clearly in criminal contempt. Four of the judges were not reelected by the following grand committee, only Chief Justice Mumford, who had given no reason in court for the judgment and who had not appeared before the General Assembly, because of illness, being spared. Justice Tillinghast was reëlected four years later, after the paper money party had been removed from power. The case of Trevett vs. Weeden is cited sometimes as a precedent for the jurisdiction assumed by the Supreme Court of the United States to declare acts of Congress void as unconstitu- tional; Varnum's argument, printed subsequently and widely circulated, might lend color to the accuracy of the citation. It is worthy of note, however, that in their answer to the Gen- eral Assembly the judges denied only the Assembly's right to call them to account for a judg- ment. Yet the Assembly had called the Supreme Court to account; it had summoned the justices to plead an excuse before the bar of the Assembly, and it had asserted a right to dis- cipline the court by dismissing the justices; in the end it excused the justices from further attendance on the ground that no disrespect for the Assembly had been intended. Further- more, at the next election the General Assembly removed the offending justices from office. There could be no reason to sustain a lingering doubt after May, 1787, that the General Assembly had justified its right to be called an omnipotent legislature.
LAY JUDGES -- The ratification of the Constitution of the United States, 1790, concluded one of the most turbulent periods in Rhode Island politics.t The same quiet that prevailed otherwise following ratification was reflected in the security of tenure in the Superior Court; in ten years, in spite of annual election, there were only ten changes in the list of justices. Meanwhile the name of the court had been changed to Supreme Judicial Court in 1798. For seven years, from June, 1801, to May 1, 1808, there were no changes of judges ; and changes were few relatively in the composition of the court until the reorganization of 1827. Mean- while the brilliant James Burrill, Jr., 1816-1817, and Tristam Burges, 1817-1818, both emi- nent lawyers, distinguished Congressmen and remarkable orators, served each a year as Chief Justice. Next came Asa Messer, D. D., Baptist minister, who had been president of Brown University, but was not a lawyer, to take the place of James Fenner as Chief Justice, who refused to accept election. The General Assembly had not been committed by the election of Burrill and Burges to the policy of maintaining a professional Supreme Court composed of lawyers. Isaac Wilbour, last of the old Chief Justices, followed Messer and served for eight years. Wilbour was a farmer who had entered politics ; his rise through various offices
+Chapter XIII.
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carried him to the Supreme Court as Associate Justice in 1818, and the next year he was elected as Chief Justice. He was not a lawyer ; yet he added to an understanding of a lim- ited number of legal principles a great abundance of wisdom, and he was a righteous judge. American law had been undergoing a change that was aptly epitomized by the remark attrib- uted to Chief Justice Marshall of the Supreme Court in concluding an opinion: "That, gen- tlemen, is the opinion of the court; Justice Story will discuss the authorities." Marshall was a lawyer who based the decisions through which he expounded the Constitution of the United States upon profound reasoning. Story was a learned lawyer, who, like Chancellor James Kent, combined with legal reasoning an acquaintance with legal literature.
A new type of American lawyer was rising, product of the law schools established in American universities. Law was becoming vastly more exacting and technical, and the decision of cases turned upon accurate interpretation and application of legal principles, more and more clearly defined in the white heat of forensic argument. Wanting a professional state court, so much of Rhode Island litigation as involved technical discrimination and as could be brought within the jurisdiction of federal courts, was removed to the District Court of the United States, and to higher courts, by Rhode Island lawyers, who realized the futility of argument before other than a court of lawyers. The change in the practice of law was rec- ognized by the Rhode Island General Assembly in 1827. The Supreme Court was reduced to three judges, and the mandatory obligation that a justice should instruct the jury in the law practically excluded others than lawyers from the bench.
FIRST PROFESSIONAL SUPREME COURT -- The first professional Supreme Court- Samuel Eddy, Chief Justice, and Charles Brayton and Samuel Randall, Associate Justices-served six years, 1827 to 1833, without change. Job Durfee succeeded Samuel Randall in 1833, and two years later became Chief Justice, in succession to Samuel Eddy, deceased. The Supreme Court of 1835-Job Durfee, Chief Justice; Levi Haile and William R. Staples -- was the last Supreme Court under the Charter, and the first under the Constitution, as it remained in office unchanged until in 1843 a third associate justice was elected in the person of George A. Bray- ton. The court thus increased continued without change for five years to 1848. The status of the Supreme Court from 1827 to 1843 with reference to the General Assembly was that of a separate, professional court. The justices were elected annually, but the tenure established by reelection indicated a recognition by the General Assembly of a new dignity in the court, and little disposition to change it. Job Durfee served thirteen years; Levi Haile, nineteen ; William R. Staples, twenty-one; George A. Brayton, twenty-six. Haile died while in office, and Staples and Brayton resigned.
THE CONSTITUTION AND THE COURTS-The Constitution of 1842 made possible a new status and a new dignity for the Supreme Court. It provided that the judicial power should be "vested in one supreme court, and in such inferior courts as the General Assembly" might "from time to time, ordain and establish"; that the several courts should "have such juris- diction as may from time to time be prescribed by law"; that the judges of the Supreme Court should "in all trials instruct the jury in the law"; that they should also "give their written opinion upon any question of law whenever requested by the Governor, or by either house of the General Assembly"; that the judges should be elected in grand committee, to serve until, in the instance of any judge, "his place be declared vacant by a resolution of the General Assembly to that effect .... voted for by a majority of all the members elected" to each house, and otherwise for removal by impeachment; that the compensation of judges should not be diminished during their continuance in office. Besides the gains through specific statement in the fundamental law, the advantages apparent immediately were (I) tenure dur- ing good behavior instead of annual election; and (2) irreducible compensation. Other
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advantages remained for establishment through practice. The duty of the Supreme Court to render advisory opinions might be construed as advantageous so far as it would assist the General Assembly to avoid the enactment of unconstitutional measures, but actually imposed upon the court the embarrassment of being obliged to render opinions on moot questions, besides questions reaching the court in orderly sequence of actual litigation. The court's own view was expressed by Chief Justice Ames :* "The advice or opinion given by the judges of this court, when requested, to the Governor or to either house of the General Assembly, under the third section of the tenth article of the Constitution is not a decision of this court; and given, as it must be, without the aid which the court derives, in adversary cases, from able and experienced counsel, though it may afford much light, from the reasonings or research displayed in it, can have no weight as a precedent." When in 1922, the opinion of the Supreme Court was requested on the interpretation of the amendment conferring the veto power upon the Governor,f the court requested briefs and heard arguments by counsel before writing its opinion.
DECLARATION OF JUDICIAL INDEPENDENCE-The earliest opportunity for a declaration of independence by the Supreme Court came in 1854, when the General Assembly elected in May requested from the judges an opinion as to the constitutionality of "An act to revise and annul the judgment of the Supreme Court of Rhode Island for treason rendered against Thomas W. Dorr, June 25, A. D. 1844." The act, besides purporting to reverse the judg- ment, ordered that the reversal of the judgment should be written on the face of the record thereof. In its advisory opiniont the Supreme Court argued that the provisions of the Con- stitution "create two separate and distinct, but coordinate departments of the government, the one vested with the legislative, the other with the judicial power of the state. Each is vested with exclusive power in its appropriate sphere. Upon the General Assembly is conferred the exclusive power of enacting laws. Upon the Supreme Court . . . is conferred the exclusive judicial power. . . . The power exclusively conferred upon the one department is, by necessary implication denied to the other. The court, therefore, cannot enact laws . . . For the same reason the General Assembly cannot rightfully exercise the judicial power. This is conferred upon the courts, and necessarily prohibited to the General Assembly. The union of all the powers of government in the same hands is but the definition of a despotism. To guard against such a government was one great object of the Constitution. This was to be done by this distribution of powers. This is the great principle of American liberty. The exercise by the General Assembly of the power to reverse the judgments of the courts is inconsistent with this distribution of powers, and with the existence of a distinct judicial department. . . . . The General Assembly are authorized to establish courts inferior to the Supreme Court, but not superior. They are as much restrained from establishing a court with power to reverse or overrule the decisions of the Supreme Court, as if they had been expressly prohibited. Yet in so establishing such court they might preserve the legislative and judicial departments distinct. For much stronger reasons are they prohibited from assuming to themselves the power of reversal, because they thereby not only constitute them- selves such superior court as is denied them to establish, but also thereby unite with their legislative powers those powers of the judiciary department which are essential and vital to its existence. It is the duty of the judiciary in all free constitutional governments to decide upon the constitutionality of laws passed by the legislature, and its decisions are final and conclusive. The judiciary of this state is invested with these powers. Suppose the court should decide an act to be unconstitutional, the General Assembly may reverse the decision,
*Taylor vs. Place, 4 R. I. 324, at page 362.
¡Opinion to the Governor, 44 R. I. 275.
#3 R. I. 299.
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and by a final judgment of their own, affirm the constitutionality of the act beyond redress. This would destroy all the safeguards intended to be secured by a distribution of powers into distinct departments. The fact that the state is a party to a judgment does not confer upon the General Assembly any judicial power over it. As party they may have the same power over a judgment that any other party has. They may remit a penalty, commute punishment, or pardon. They may release a judgment in a civil suit, or acknowledge satisfaction. But this gives no power to reverse the judgment. It is simply a power to release or surrender the right which the judgment gives or decides to be theirs."
It will be noted that the Supreme Court (I) not only denied the authority of the Gen- eral Assembly to reverse a judgment, which would have been a sufficient answer to the ques- tion asked by the General Assembly, but (2) also asserted its own authority to declare acts of the General Assembly void as unconstitutional, which was not essential. Besides that, it should be noted also that the advisory opinion of the Supreme Court in this particular instance was altogether in accord with the wishes of the General Assembly which asked the question, and which sought for entry upon the legislative and judicial records of the state something that would be more effective for history and for public opinion at the time than its own repeal of the statute enacted by the earlier General Assembly. The latter was controlled by friends of Dorr; the former by his opponents. Perhaps the Supreme Court realized in the circumstances an opportunity to couple with the declaration of independence, which it was encouraged to make, an affirmation of a greater right eventually-that of determining the constitutionality of legislation-which had the effect of establishing not merely independence of two coordinate branches of the government, but the right of the judiciary to assume super- iority of its judgment as to the interpretation of the Constitution over the judgment of the General Assembly. After asserting both independence and superiority of judgment, the Supreme Court proceeded to limit the application of its opinion to the reversal or annulment by the General Assembly of judgments of the Supreme Court. suggesting that the Assembly might have the ancient power exercised under the Charter of granting new trials. It was this supplementary discussion of an issue not involved in the question submitted to the court that evoked the declaration* by Chief Justice Ames that advisory opinions have not the standing as precedents accorded to real cases actually tried with the assistance of adversary counsel.
DENIAL OF JUDICIAL POWER IN ASSEMBLY-It fell to Chief Justice Ames to write a decision repudiating the dictumt of the Supreme Court in the Dorr case. On petition the General Assembly set aside a verdict and ordered a new trial, and the case was taken to the Supreme Court for a decision on the constitutionality of the action of the General Assembly. The court held that "thus to set aside a verdict and grant a new trial in a suit at law . . is the exercise of a judicial power." Asking the question, "Has the General Assembly of this state, under the Constitution, the right to exercise judicial power, or is the exercise of such power prohibited to it by the Constitution?" the court answered "If the law-making depart- ment of our government has also the power to interpret and to enforce their interpretation of the law, either acting wholly by itself or by directing and controlling, as a superior tribunal, all other tribunals of the state, every friend to a settled and well-ordered administration of justice amongst us-every lover of free government itself-has, indeed, cause to mourn. It was the celebrated maxim of Montesquieu that 'there can be no liberty where the legislative and executive powers are united in the same person or body of magistrates,' or 'if the powers of judging be not separated from the legislative and executive powers.'" The court referred to argument of counsel in Wilkinson vs. Leland# that the General Assembly of Rhode Island
*Supra.
tTaylor vs. Place, R. I. 324.
12 Peters, 631.
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had always exercised supreme legislative, executive and judicial power, and to Madison's statement that "the legislative department is everywhere extending the sphere of its activity and drawing all powers into its impetuous vortex,"§ and continued : "The question before us is substantially, whether, when in 1843 the people of this state adopted a Constitution, they attended to this truth, and heeded this warning so long before given, and constantly standing before them; or whether, leaving the General Assembly in the possession of full judicial power, as well as of legislative, and nearly of executive, this Constitution-declared in the first paragraph of the first article to be of paramount obligation in all legislative, as well as judicial and executive proceedings-was set up by them as a mere 'parchment barrier' against the enterprising ambition of the legislative department of the government, which, as a court, could expound away every restriction imposed upon it as a legislature?" . . . "The powers of government, which, under the old Charter, as under all the old colonial charters in this country, had been aggregated in the General Assembly, as it was called in most of them and in ours, and in the General Court, as in some, were distributed among the appropriate depart- ments, that thus a just balance of power might obtain among all; the judiciary, the weakest, and therefore the safest depository of such power, to control the tendency to excess of action in every other department, and especially to check encroachments upon the just limits of its
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