USA > Rhode Island > Providence County > Providence > State of Rhode Island and Providence Plantations at the end of the century : a history, Volume 3 > Part 10
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In 1638 the inhabitants of Portsmouth incorporated themselves "into a bodie politick", to be guided and judged by the laws of Christ given in His holy word, and the same day elected William Coddington a judge. It is probable that this office was more executive than ju- dicial, although combining judicial functions.
At a general town meeting of Portsmouth held in 1638 certain persons summoned before the meeting for "a riott of drunkennesse" were variously fined and punished. Later in the same year the gen- eral meeting appointed some of their number to seize upon the prop- erty of an insolvent and "satisfie" themselves and others of his creditors.
At this date no advance beyond the meeting of the freemen had been made, but later in the year Elders were chosen to assist the judge in the execution of justice and judgment, for the regulating and ordering of all offenses and offenders. To them was committed by the body the whole care of its affairs. This is the first instance of dele- gated power, a representative body chosen for the administration of justice. It is a rudimentary judiciary, taking shape and separating from the general body of the freemen. A provision that the judge and elders shall be accountable once every quarter unto the body, shows plainly, however, that the general meeting had no intention of releasing any of its power as a supreme court of appeal. This unique feature of the exercise of judicial authority by the Legislature of this State, as the representatives of the people, had its origin here in the formation of the scattered bodies of the first comers into the early towns. From that time throughout the entire history of the Colony and State the anthority was strenuously contended for.
The meeting provided by order, "that if by the body the Lord shall be pleased to dispense light to the contrary of what by the judge and elders hath been determined formerly, that then and there it shall be repealed as the act of the body". No clearer claim to revise the judgments of its courts could be made than this early act of the gen- eral meeting of the town of Portsmouth.
After the separation of Portsmouth and Newport, in 1639, the government of the former was continued under a judge, with assist- ants chosen for him ; and now for the first time appears the mention of a jury. This was composed of the regulation twelve men, and sat in connection with a system of courts established at the same time; but the records are so mutilated that it is difficult to tell exactly what was intended. Probably it was a system of monthly, quarterly and yearly courts, the former held by the judge and assistants, the quarter courts held with a jury, having jurisdiction in matters of superior moment, with an appeal to the yearly court, the latter very likely the annual assembly of the freemen, as was the custom in the neighboring Colony
HON. SAMUEL AMES.
CHIEF JUSTICE OF THE SUPREME COURT OF RHODE ISLAND 1856-1862. FROM A PORTRAIT BY BRUHL IN THE PROVIDENCE COUNTY COURT HOUSE.
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of Massachusetts. Whatever it was, it marks another slight advance in the judicial system of the future State.
That the system of trial by jury soon became well established is apparent from a record in the year 1642, when it is recorded that both grand and petit jurymen were chosen.
The agreement entered into by the separating members who set- tled Newport provided for a determination by major voice of judge and elders, the judge to have a double voice. One of the first ordi- nances of the town provided for a monthly meeting of the judge and elders, to hear and determine all causes presented to them. Provision was also made for the method of voting in the quarter courts, thus confirming what we have before suggested as to the early system of courts then inaugurated. November 25, 1639, it was ordered by the body politic of Newport that "all matters that concern the peace shall be by those that are officers of the peace, transacted, and all actions of the case, or debt, shall be in such courts as by order are here appointed and by such judges as are deputed, heard and legally determined". January 29, 1639, it was ordered that once each year the judge and elders and all other officers should be in the general court, to be held for the year ensuing, by the greater part of the body of freemen, then and there present, and such as should be necessarily detained to send in their votes. Great as the advance had been in some ways from the primitive methods of a few years before, the general assembly of the freemen was still the court of last resort to which any inhabitant had the right to appeal. No change had been made in this respect.
During the year 1640, under the union of the towns of Portsmouth and Newport, particular courts, consisting of magistrates and jurors, were constituted, to be holden monthly with full power to judge and determine all such cases and actions as should be presented before them. That these were courts of limited jurisdiction is evident from an order entered the same year, providing that in the magistrates' courts actions might be entered and juries empaneled and causes tried, excepting cases of life and limb, and affording an appeal to the quarter sessions to be holden upon the four quarter days of the year. Two parliamentary or general courts were also constituted. This was a slight elaboration of the judicial system established in 1639, and is the foundation of the present arrangement of the judicial system of the State. In this early settlement of the court may be traced many of the salient features of to-day. In 1643 a charter was granted to the inhabitants of the towns of Providence, Portsmouth and Newport, conferring the power "to make and ordain such civil laws and to inflict such punishments and to place and displace officers of justice" as should be agreed to by the consent of the majority, provided that the laws and punishments were conformable to the laws of England, so far as the nature of the place admitted. As has been pointed out,
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there were marked differences between this charter and the patents and charters previously granted to other colonies. This was the charter of a colony, conferring absolute authority within its bounds. Under this charter and that of 1663, which was practically an amplifi- cation of the rights conferred in the carlier, the courts of Rhode Island were established and exercised their prerogatives for two centuries.
One of the first acts passed by the General Court of Election, held under the charter, was to maintain in force the laws and administra- tion of justice then in force, until the next court, when the towns were to suggest such necessary changes as the exigencies of the time and place demanded.
At the next General Assembly of the people the code of 1647 was enacted. This body of laws merits more than passing attention. It is in many ways remarkable, but taken in connection with the attendant circumstances of its enactment, the place, the time and the people for whom it was intended, it is unique in the history of the colonics, not of that time alone, but of all time. In the neighboring Colony of Plymouth, after sixteen years from its settlement, the records ex- hibited but forty laws, most of them passed to meet special wants; there were no criminal laws, the magistrates exercising their discretion in such matters, while in the majority of cases coming before their courts the custom or usage of England in similar cases was followed as closely as was possible. But in this Colony, the representatives of four scattered communities, "settled in a wilderness among bar- barians", mnet and enacted a code of laws that is to-day the basis of the statute and constitutional law of the State. The authority con- ferred upon the Assembly by the charter was broad; they were limited in but one respect, "so as such laws be not contrary and repugnant unto but as near as may be agreeable to the laws of this our realm of England, considering the nature and constitution of the place and people there".
The common law of the American colonies has generally been defined to be the common law of England modified and restricted so as to conform to its new environment, together with the English stat- utes in force prior to the cmigration. That this was so in Rhode Island appears clearly from the code, which adopts the common as a part of the laws of the Colony, and which refers repeatedly to the various English statutes by which such law was modified or amplified. In the digest of 1719 the entire body of English statutes was adopted as laws of the Colony, although after 1744 only a portion of these statutes were in force.
Bearing these facts in mind, the code of 1647 not only appears as the embodiment of the common and statute law of England, but as containing a most elaborate digest of the new and local statute law of the Colony.
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But the feature which illuminates the whole and makes this code adopted by these settlers on the borders of a new world, who had left their fields, their half-thatched homes, and stopped for a time the clearing of the wilderness to trust themselves to the perils of a journey of thirty miles upon the bay in their frail transports, in order to frame the jurisprudence of the State-what makes it forever immortal in the constitutional history of this nation, is its Bill of Rights, breathing the spirit of, but far more advanced and liberal than, the Magna Charta of England.
In the first clause the spirit of the whole code is spoken. No person in the Colony-and it is to be noted that the benefit is not confined to its citizens as, from the history of the neighboring Colonies, we might expect -no person in the Colony shall be taken, imprisoned or molested but by the lawful judgment of his peers, or by some known law and according to the letter of it. The limits of this work will not permit a further examination of this declaration of the rights of the people, but, if one cares to examine it, look into the constitution of to-day and it is there. The code contained an elaborate definition of the felonies known to the common law, with penalties for their violation. It also furnished remedies for torts and trespasses to persons and property ; enacted a statute of frauds; provided for the transfer of real estate and for the recording of evidences of title ; established laws to regulate the relation of master and servant; regulated the probating of wills and the ad- ministration of the estates of decedents with an amount of detail to which the law of to-day can add but little. For the administration of justice in the Colony, a General Court of Trials was established, to be held twice yearly, having jurisdiction over such crimes as might hazard life, limb, disfranchisement or banishment and such trespasses, debts and differences as should be adjudged too weighty for a more private determining; also over matters between town and town or between parties in two towns more remote; in short, over all matters of great importance to the Colony. The president and assistants of the Colony were appointed general conservators of the peace throughout the Colony, which office is still by statute appurtenant to that of justice of the Supreme Court.
They also composed the General Court of Trials. Town courts, it is to be inferred, had the jurisdiction heretofore exercised in matters of minor importance among their citizens. The General Court was declared to be a court of assize or gaol delivery, as well as a court of common pleas, thus conferring upon it the jurisdiction exercised by the courts of King's Bench and of Common Pleas in England. Later, in 1651, all suits and prosecutions except for some crimes of the highest grade were required to be first brought or prosecuted in the town courts. Not the least remarkable feature of the code is the chapter relating to the civil procedure. Provision is made for two attorneys
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belonging to the court in each town, to be at the service of litigants "solemnly engaged not to use any manner of deceit to beguile eyther court or partic".
With the enactment of this body of laws we are introduced to the beginning of an organized judicial body in the Colony, a body somewhat set apart from the legislative and the executive, but still forming a part of the former and as ever subject to it.
The organization under the charter of 1643 has been frequently referred to as rather a federation of towns than the organization of the colony which was contemplated by the charter. It is true that the powers of the government were, to but a very slight degree in many ways, consolidated, but it is also truc and a noteworthy fact as well, that a centralized judiciary was established and that in this body, subject of course to the review of the Assembly at all times, we see the first instance of a delegated control over themselves and their property surrendered by the towns. In fact, weak as it was for so many years, the judicial department was the first that can be really called a federal department of the State.
By the charter granted by the Assembly in 1649 to the town of Providence, it was empowered "to make and ordain such civil orders- to inflict such punishments-and for execution thereof and of the common statute laws of the Colony agreed unto and the penalties and so many of them as are not annexed already unto the Colony court of Trials-so to place and displace officers of justice as they shall agree unto", reserving to the Assembly power to dispose the general govern- ment of the plantation.
The proceedings of the immediate Assemblies following the or- ganization under the charter were largely taken up with acts regulat- ing practice and procedure. It is notable that these men, busy with the struggle for existence under the difficulties attending this early settlement, could find the time or the inclination to settle fine points regulating judgments by default, attachments, the taking of testimony by magistrates, writs of "supercedious", and many other of the details of civil procedure. And yet the reports of these early sessions of the Assembly arc full of just such acts. It had been ordered in 1648 that six men of each town should be chosen in whom the General Court should continue. This was a marked advance in representative gov- ernment, but so far as the power of the courts was concerned, denotes no change. The power hitherto exercised by the people as a body in general assembly was now vested in their commissioners or committee, as they are variously called.
We shall see how this power of control over the courts continued and to what it led. In 1650 an act regulating divorce was passed, the act providing that divorce was not to be granted "for any other case but that of adulterie". But it appears that this strictness was not
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long maintained, for, in 1655, after providing for the granting of divorees by town magistrates, it is further enacted that the benefit of the aet should extend to "all other eases of separation or divoree betwixt man and wife"; and about this time permission was given Mr. John Coggeshall, who had separated from his wife by the mutual con- sent of both parties, to contract a new marriage.
In 1656 a premium was placed by the Assembly upon unanimity in the decisions of the courts by the passage of a law that "if any magistrate on ye bench dissent from ye rest of ye magistrates, in any eause, then any such dissenting magistrate may enter his protest, pay- inge eighteen penee to ye recorder for entering it". Remembering the relative value of money at that time, the effeet probably was to make a harmonious and unanimous court. As a careful examination of the Reports of this State will disclose a remarkable freedom from dissenting opinions, it may be that the eause ean be sought in this far off aet of 1656.
At the session of the Assembly in 1657 provision was made for the satisfaction of an exeeution that remained unserved for want of estate of the judgment debtor, while in another instance the issuing of judg- ment after a nil dicit was regulated. These cases are eited merely to illustrate the supervisory power exercised over the courts by the As- sembly. In 1658 a fine passed upon a prisoner by the General Court of Trials was remitted, and immediately thereafter another prisoner awaiting trial in the same eourt was ordered to stand acquitted.
By the charter of 1663 the Colony was given authority to appoint, order and direct, ercet and settle sueh places and courts of jurisdiction for the hearing and determining of all actions, causes, matters and things happening within the Colony which should be in dispute, and also to distinguish and set forth the several names and titles, duties, powers and limits of each eourt, office and officer, superior and inferior. In accordance therewith the Assembly ordered, in 1664, that two Gen- eral Courts of Trial be held yearly, appointing the governor, or deputy governor, and at least six of the assistants to hold such eourts, and making provision for the holding of Special Courts upon urgent oeea- sion in Newport for seamen and merchants. -
Two annual Courts of Trial were also established "upon the mayne" at Providenee and Warwiek for the trial of any action under ten pounds in value, the courts not to sit without at least three assist- ants, with power conferred upon any one of the assistants to grant an appeal upon any substantial matter or error in the proceedings.
In 1664 a Local Court was established for Block Island, consisting of three able and discreet men, with jurisdiction of all eauses not ex- eeeding the value of forty shillings, with an appeal to the General Court of Trials of the Colony. Where the value was above forty 7-3
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shillings, any one of the Seleetmen was authorized to grant a writ for attaching the person or property of the debtor or tort feasor, in erim- inal matters, two Seleetmen being required, bond or security being furnished for the appearance of the defendant at the General Court of Trials. In this ean be seen the prototype of the jurisdiction of the Inferior or Distriet Courts of the present day, whose jurisdietion is limited, but authority being conferred upon them to apprehend and bind over in eriminal cases to the Court of Superior Jurisdiction.
The absence of appreciation of the relative positions of the legis- lative and judicial branches of the government is well illustrated in a matter that eame before the Assembly of 1666. One Harris had re- covered a "verdiet of jury and judgment" against one Horrod, and execution had been issued but had not been served. The matter finally eame before the Governor and Assistants, and they, with a sense of the proprieties of the ease, determined that "it was beyond the power of their own authority to say ought in the matter as to judge farther therein, seeing it had already passed in a court of records", and then they proceeded to deelare, "as now the matter is eireumstantiated it must or ean be no other power in this eolony ean determine pro or eon as to the advice about serving the execution but a law making assembly". The Assembly thereupon took up and decided the ease.
In 1667 appears the first instance of the Assembly granting a divoree a mesa et thoro, "a kind of necessity for the present" appear- ing "to permit their own aet so far as it relates to their living apart".
In 1678 the Assembly, on a petition eoneerning an action that had been twiee tried before the General Court of Trials, plaeed upon reeord the declaration, "that this Assembly eoneeive that it doth not properly belong to them or anywise within their reeognizanee to judge or reverse any sentenee or judgment passed by the General Court of Trials, aeeording to law, exeept eapital or eriminal eases or mulet or fines". How long and to what extent the Assembly adhered to this position will appear.
In the session of 1679 it appears that an aetion of "unjust moles- tation" had been brought and, after a jury trial, verdiet had been returned for the plaintiff. The court evidently had some doubt as to the nature or eharaeter of the aetion, and suspending judgment, re- ferred the matter to the Assembly. That body, after considering the ease, decided that they "saw eause to return the matter to the wisdom and consideration of the General Court of Trials, together with our opinions, which are, that all eases of that nature are not actionable and suppose judgment in this present ease ought to be barred for- ever". This illustration is ealeulated to bring forth the relative posi- tions of the two bodies in their true light at that time. For a court, after the trial of an action, to refer it to the Assembly for determina- tion as to the existence of any eause of aetion, is amusing.
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In 1680 appeals from the judgment of the General Court of Trials were regulated, the appellant being required to file his appeal within ten days subsequent to the judgment and paying costs.
Hitherto, judging from an act reciting the proceedings in a case tried in 1679, either party to an action had been entitled to have such action reheard by a jury after judgment against him, the aggrieved party in the second action having his appeal to the Assembly. The purpose of the above act evidently was to cut off this second jury trial. How dear this right to a second trial was to the citizens of this State will be disclosed in the subsequent development of their juris- prudence.
The following case is an apt illustration of the practically equit- able jurisdiction exercised by the Assembly at this time. An action of debt had resulted in a verdict for the plaintiff. On a second trial claimed by the defendant, the jury found for the latter. The plaintiff then appealed to the Assembly. This body, after hearing the evidence anew, found that neither party had performed their covenants in all respects, and directed that the defendant should pay a certain sum to the plaintiff, on account of his breaches of the covenants, and further ordered the plaintiff to allow the defendant the balance of the account and "the barrill of beife" which the defendant, according to the letter of the covenants, should have paid, as satisfaction of the breaches on the part of the plaintiff.
In 1703 it was enacted that no attorney should be admitted to plead in any of the courts, unless first sworn not to plead for favor nor affection of any person, but to the merits of the case, according to the law. It is apparent from this statute that the art of the advocate in winning verdicts had already begun to be a factor in this primitive community. At the same session two inferior Courts of Cominon Pleas were established, to be holden on the mainland, at Providence and Warwick respectively in one year, and at Kingstown and Westerly the following year, and in this order thereafter. Two similar courts were also appointed for the county of Rhode Island, which included the island of Rhode Island with the rest of the islands within the Colony.
A good portion of the session of October, 1704, was occupied with the consideration of appeals from the General Court of Trials. In some cases the judgments were sustained ; in others compromises were entered into. It had before this time become a regular practice of the Assembly to devote a part of the session to the hearing of these appeals.
In 1705 representation was made to the Assembly that it would be a great benefit to have a Court of Chancery erected in the Colony, but the Assembly, having considered the rules and methods for the procedure in such a court, and regarding them as of great weight and
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eoneernment and requiring mature consideration for their orderly settling, enacted that the General Assembly, at all times convened in general assembly, should be a Court of Chancery, as it had formerly been, until such time as a more proper Court of Chaneery might be ereeted. What the Colony eould require of a court of chaneery that this body, superior to all laws of procedure and making and interpret- ing their own aets did not furnish, it is hard to conceive. It is to be inferred from the language paraphrased above, that the Assembly eoneeived from an examination of the rules and constitution of the High Court of Chaneery of England, to which they had evidently referred, that the natural equity which they administered was more consonant with their own abilities and the needs of the Colony.
An amusing instanee oeeurs in the report of the session of 1706. One Thomas Whipple, a man of "but mean estate", had been assessed in damages by a jury and had failed to enter his appeal in time, and therefore appealed for relief to the Assembly, which determined solemnly that "while it is very requisite that reviews upon aetions should be entered within the time as the law requires, yet as matters. may be eireumstaneed we eoneeive it cannot be prejudicial nor any impediment unto the said law to grant a person a review of his aetion by a particular and special order from the Assembly. For if a person do review in time, as the law requires, he eould but have his trial; and if by a special order he do review it, it will be no more but a trial, as a trial is but a trial, whether the review be entered in season or by a special grant, and the law allows either plaintiff or defendant two trials in one ease, if he see eause; the whieh if he be abridged of, he will be deprived of the benefit which the law affords for relief".
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