USA > Rhode Island > Providence County > Providence > State of Rhode Island and Providence Plantations at the end of the century : a history, Volume 3 > Part 11
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At the session of 1708 the Assembly went so far as to praetieally prejudge a ease, by the provision that in an action to be brought by their direction, there should be no non-suit allowed. At this same session, so far as appears, is the first instance of an appeal from the decision of the Assembly. This was a ease which had been appealed to the Assembly from the judgment of the Court of Trials, and after the decision of the Assembly "settled as a court of ehaneery or equity", the appellee appealed to Her Majesty in Couneil. The pro- eeedings upon this last appeal were disastrous to the authority of the Assembly. In the words of that body, "their proceedings were utterly condemned". After knowledge of the result of the appeal had reached them they plaeed upon reeord the following resolution, which, had its. spirit been adhered to instead of its letter followed, would have placed the judiciary in their proper position quite a eentury and a half in advance of the actual result. The resolution was in these words :
"Notwithstanding a former aet of this Colony which hath eon- stituted and empowered the Assembly to be a Court of Chaneery, we judge that they had no power or authority to make any such law, by
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reason we cannot find any precedent that the legislators or parliament of Great Britain, after they had passed an act or law, took upon them- selves the executive power or authority of constituting themselves a Court of Chanecry or any other court of judieature there- fore no appeal from the Court of Trials for the future be granted, allowed or brought before the Assembly of this Colony".
They also provided for the establishment of a regular Court of Chaneery, according to the methods and precedents of England. After enaeting the foregoing laws the Assembly immediately provided "that appeals may be by way of petition to this Assembly, and have relief in any matter or thing that may be eognizable before them, or may at any time hereafter when a proper Court of Chancery be stated, have their appeals continued to said court of relief, if they shall think fit to prosecute the same".
The difference between an appeal and a petition to the Assembly was but slight. The right of appeal, technically so ealled, was abol- ished, but under this new form by way of petition the jurisdiction eon- tinued, and so far as coneerned petitions for new trials and trials, the Assembly continued to exereise such jurisdiction without question, even so far, as will be shown later, as beyond the time of the adoption of the present constitution.
The Court of Chancery referred to above was evidently not estab- lished at that time, and it was not until 1741 that a Court of Equity was eonstituted by the Assembly "to hear and determine all appeals in personal aetions from the judgment of the Superior Court". The preamble to the act recites that "whereas the trial of appeals by the Assembly from judgments given at the Superior Court of Judicature have by long experience been found prejudicial as well to the parties as to the government, by the publie business being neglected", it seemed best to constitute a eourt consisting of five judges, to be ehosen annually, with authority to hear all appeals from judgments of the Superior Court in personal aetions and to give a determination on sueh appeals by affirming, reversing or altering the judgments agree- ably to law and equity in as full and extensive manner as the Assembly had been accustomed to do. This eourt, it is elear, was rather a court of appeals in matters of law than a court of equity proper. It shows, however, an appreciation of the true position that the Legislature should oceupy in the body politic. For the last fifty years evidenees that some at least of the statesmen of the time understood the anom- alous position which the Assembly oeeupied had not been wanting.
From time to time indieations of a strieter adherenee to their legis- lative funetions had been apparent in the proceedings of the Assembly, but they were but spasmodic and without any foundation in a true appreciation of their relative positions. The Assembly had too long been a final court of appeal to relinquish this power, and despite the
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indications referred to, the prerogatives of a court continued to be exercised for years to come.
The court, however, was of but short duration. At the session of 1743-4 it was abolished for the reason "that it was found by experi- ence that the trial of cases by the Court of Equity was inconvenient and a great grievance to the inhabitants of the Colony". In a subse- quent portion of this history we shall discuss the growth of the chancery powers of the courts, as distinctive from the exercise of such powers by the Assembly.
In the discussion of the foregoing subjects a departure has been made from a strict historical review of the early courts and their jurisdiction. It will be recalled that under the first charter the Gen- eral Court of Trials was held by the president and assistants twice annually for the whole Colony. This court, with the Quarter Sessions and Town Courts, composed the judiciary of that period.
When first created the former court had jurisdiction of the higher class of crimes and in general of all important matters, and at least after 1650 exercised an appellate or revisory jurisdiction over the inferior courts : but in 1651 it was enacted that all causes except prosecutions for certain crimes of the highest magnitude should be first tried in the Town Courts, thus converting the General Court into a court of appeal.
Under the charter of 1663 the governor and assistants exercised the powers generally of the former officials under the first charter, but the General Court as then constituted had more original jurisdiction.
The General Court, when full, consisted of eleven magistrates, and as first established, seven were necessary for a quorum. The records show, however, that the court was very seldom full and very frequently found a quorum wanting. As early as 1664 an act was passed that when no quorum appeared those absent should be fined five pounds. This failed to correct the matter, and in 1665 the Assembly declared the evil so great "as to hazard the loss of the charter". The Assembly, suspecting that the absence might be caused by a fact which is potent even to-day in bringing out a large attendance at meetings of various bodies, allowed the judges each three shillings a day for at- tendance with a fine of double that amount for absence. It reduced the number necessary for a quorum to the governor or deputy and four assistants, retaining the fine of five pounds for all absentees when a quorum was not present. Later still a quorum was made to consist of the governor or deputy and three assistants, or any five assistants.
In 1690 the local or Town Courts, held by the assistants, justices of the peace or wardens of the respective towns, were given jurisdic- tion in civil actions, where the value of the property in dispute or damages claimed did not exceed forty shillings. An appeal was allowed from their judgments to the General Court.
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In 1729 a large advance in the systemization of the courts was madc. This establishment of courts then instituted marks really the second in the ordering of the judiciary of the State and is the basis of the present arrangement of the courts. A Court of General Scs- sions of the Peace was established in each county, to be held by the local justices of the peace or any five of them, empowered to hear all things relating to the conservation of the peace and all pleas of the crown, capital crimes excepted. This was of course a criminal juris- diction. They held sessions semi-annually, and an appeal lay from them to the higher court. They also had appellate jurisdiction of all petty offenses triable by a justice of the peace. This latter court of the justice of the peace, always in session, was the unit around which the rest of the judicial fabric was reared; aside from their original jurisdiction in minor matters, they bound over other offenders to the respective courts having jurisdiction of the offenses.
The civil courts of this degree corresponding to the General Ses- sions were called Courts of Common Pleas. They were each held by four judicious and skillful persons chosen by the Assembly from their respective counties. Their jurisdiction extended to the trial of all civil actions arising in the county, triable at the common law, provided the amount in controversy exceeded forty shillings, excepting cases where the freehold was concerned. They also had jurisdiction by ap- peal from justices of the peace.
The Courts of General Sessions of the Peace and the Courts of Common Pleas, while nominally distinct, were in reality held by the same persons. This is manifest when we recall that the former courts were held by justices of the peace, five of them constituting a quorum, and that the Courts of Common Pleas consisted of five judges who were made by statute justices of the peace of their respective counties in criminal cases. The Courts of General Sessions continued to exist as separate courts until 1838, when they were abolished and their powers conferred upon the Courts of Common Pleas, which from this time exercised both civil and criminal jurisdiction.
While formerly appeals in criminal matters from justice courts had been taken to the Court of General Sessions and in civil matters to the Common Pleas, from henceforth in both cases the appeals were to the Common Pleas.
At Newport a court was established known as the Superior Court of Judicature, Court of Assize and General Gaol Delivery. It con- sisted of the governor, deputy governor and assistants, and had the original jurisdiction of Courts of Common Pleas, King's Bench or Exchequer of England, as well as appellate jurisdiction from the Courts of General Sessions and Common Pleas. From the jurisdic- tion already conferred upon the lower courts, it will be seen that the jurisdiction of the Superior Court in civil and mainly in criminal
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matters became purely appellate, but under this appellation it was broad and ample. It continued during its existence as such to be held exclusively at Newport. This existence lasted for nearly a century. It should be especially noted that the judges of this Superior Court of the Colony were as well the political officials of the Colony.
May not one, if not the chief, reason and cause for the long con- tinucd excreise of judicial functions by the Assembly be sought for and found here? The governor and assistants under the charter of 1663 were a part of the Assembly, and during the first few years at least under this charter they sat with the delegates as one body in the Assembly. Hence in deciding questions which came before the Assem-
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bly on appeal they might reasonably feel that, constituting as they did the Superior Court of the Colony, they were really exercising their judicial powers although for the time under the cloak of a legislative body. It would seem that this suggestion is founded as much upon fact as upon speculation.
In 1767 the Common Pleas Courts were ordered to consist of one chief justice and four other justices in each county, and it was pro- vided that upon an appeal from them to the Superior Court, new evi- dence might be received by the latter.
At the same time a marked change was made in the constitution of the Superior Court. Although still known by its former name, it from this period ceased to be held by the political officers of the
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Colony. One chief justice and four associate justices were to be annually appointed for it by the Assembly, and its jurisdiction was extended to the trying of all pleas, real, personal and mixed, and all pleas of the crown, thus including civil as well as criminal jurisdiction, as well as jurisdiction by way of appeal, writ of review, writ of error, certiorari and other extraordinary powers.
No important change was made in the jurisdiction or constitution of the courts, except in slight changes from time to time in jurisdic- tional amounts, until after the adoption of the present constitution. In 1798 the cumbrous name under which the highest court of the State had existed for so many years was changed to that of the Su- preme Judicial Court, which title in turn was changed under the con- stitution to that of the Supreme Court, which it has ever since re- tained.
In the words of the constitution of 1843, the "judicial power of this State shall be vested in one supreme court and in such inferior courts as the General Assembly may from time to time ordain and establish".
The Supreme Court established under this clause was given cognizance of all actions of a civil nature; whether at law or equity ; together with jurisdiction of all crimes and offenses legally brought before it; jurisdiction in divorce and insolvency, with power to issue all extraordinary writs and process. The court consisted of one chief and three associate justices.
Courts of Common Pleas were established in each county, having jurisdiction in all civil actions commenced by attachment of real estate or where the value was over twenty dollars, arising within the county, and of all crimes where the punishment was not capital or of seven years or upwards. These courts were to be held by two justices elected by the Assembly for each county, together with a justice of the Supreme Court, who acted as chief justice. The chief justice was directed to instruct the jury in the law and permission was given him to sum up the evidence whenever it should be deemed advisable.
The jurisdiction of justices of the peace was practically what it had formerly been. The civil law jurisdiction of the Supreme Court under this new arrangement of the courts continued to be mostly appellate, as formerly it had been, until 1847, when it received original jurisdiction concurrent with the Court of Common Pleas of all civil suits for one hundred dollars and upwards.
In 1857 the jurisdiction of the justices of the peace had been in- creased to amounts of $50 and under, while the jurisdiction of the Courts of Common Pleas had been correspondingly limited. To the latter court original jurisdiction concurrent with the Supreme Court and without appeal was conferred over all crimes except where the punishment was imprisonment for life. A further important pro-
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vision was made allowing Courts of Common Pleas to be holden at the same time in different places in the same or different counties. It is to be noted that now the Courts of Common Pleas were holden by judges of the Supreme Court, designated by such justices, to sit as comnon pleas judges, and justiees of that court as distinet from the Supreme Court were no longer chosen. The appellate jurisdiction of the various courts under these various revisions of the laws had suf- fered little ehange. Appeals were allowed as before from the courts of justiees of the peaee to the Courts of Common Pleas. From the latter court, when title to real estate was in dispute or the damages recovered amounted to one hundred dollars an appeal would lie to the Supreme Court. About this time Courts of Magistrates were eon- stituted for Providenee, Newport and Woonsocket, which are the direet predecessors of the subsequent justice and the present distriet eourts, covering the State.
In the year 1872 the jurisdiction of the Supreme Court in eivil matters had been extended so that it covered eoneurrently with the Courts of Common Pleas, all eivil aetions in which the debt amounted to one hundred dollars and upwards, exeept in the county of Provi- denee, where the amount involved must have been of the value of at least three hundred dollars. As to eriminal matters, except in the county of Providence, the Supreme Court had original jurisdiction, eoneurrent with Courts of Common Pleas, over all erimes, and ex- elusive jurisdiction over erimes punishable by imprisonment for life. At this period the system of courts held by a trial justiee in each town was well established. These eourts were given eivil jurisdiction where the amount involved did not exeeed one hundred dollars exeept in mat- ters involving title to land. In eriminal matters they had jurisdiction over erimes punishable by a fine not exeeeding twenty dollars or im- prisonment not exceeding three months. Appeals could be taken from their judgments to the Common Pleas curvision.
The Superior Court was from the beginning invested with full common law jurisdiction. Its principal business was, however, in earlier times the trial of jury eases. Oeeasionally it may have had a question of law to deeide upon demurrer or motion in arrest of judg- ment, and may have oeeasionally issued one of the extraordinary writs to a lower tribunal, but sinee an appeal was allowed in all eases not eommeneed in a justiee eourt to the highest eourt of the State, and sinee the Assembly aeted as a supreme court of review in all eases where a new trial was sought on the ground of aeeident or misfortune, the Superior Court had little business other than the trial of jury eases. It was not until 1798 that any statute was passed regulating the procedure in petitions for new trial, and not until 1822 that the Superior Court was authorized to grant new trials in other courts.
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To-day petitions for new trials form the bulk of the business brought before the Appellate Division of the Supreme Court.
In 1893 an act called the Judiciary Act was passed. The Court of Common Pleas was abolished as such and its jurisdiction conferred upon the Supreme Court. This was merely a change in form, as the former courts had been held since 1848 by justices of the Supreme Court. Under this act the court is divided into two divisions, called respectively the Common Pleas Division and the Appellate Division. All jury cases must be brought either in the Common Pleas Division or, if brought in a District Court, taken there on claim for jury trial. The Common Pleas Division, it will be seen, sit only at nisi prius for the trial of jury cases. The Appellate Division exercises the old powers of the Supreme Court with some additions. It has jurisdic- tion in all questions of law brought before it, either on petitions for new trial or raised in the course of the pleadings in the Common Pleas Division, either by demurrer or otherwise. Furthermore, it has ex- clusive chancery jurisdiction; jurisdiction to issue the extraordinary writs, and generally the old jurisdiction of the Superior and Supreme Courts.
As at present constituted the Supreme Court of the State consists of a chief and six associate justices. Under the constitution a justice of the Supreme Court must instruct the jury in the law. We have scen that formerly this provision was complied with by electing jus- tices of the Common Pleas, with a justice of the Supreme Court as chief justice, who performed the duties imposed upon him by the constitution and statutes. Thereafterwards the justices of the Su- premie Court were also designated as judges of the Common Pleas. At the present time this difficulty is met by the division of the Supreme Court into the two divisions : Appellate and Common Pleas. Certain of the justices are designated to sit in the Common Pleas Division and conduct the trials by jury.
We have thus briefly sketched the history and jurisdiction of the courts of the Colony and State and shown in an equally brief manner their control by and subjection to the Legislature of the Colony. Before passing on to discuss what the rights and powers of the courts were under the constitution, let us look and see if at any time during the two centuries prior to the adoption of the constitution, the courts themselves asserted their rights and claimed the prerogatives of their position. We have seen that at intervals during this period the Legis- lature realized the anomalous position which they occupied, but despite this recognition no change was made. On the part of the court the case of Trevett v. Wecden is cited as a signal instance of an assertion by the judiciary of the true character and nature of the offices which they held. This case merits more than passing attention. So great an authority on constitutional law as Cooley cites this case
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in his work on Constitutional Limitations, as deciding the unconstitu- tionality of an act passed by a colonial legislature. Rhode Island at the time in question was in the feverish excitement of the paper money struggle. The Assembly was in control of the faetion that intended, by force of legislative enactment to make the colonial script a legal tender for the payment of debts and the purchase of commodities. The so-called "force acts" provided for heavy penalties, and for special eourts, without the right of jury trial, to assist the operation of the laws. One Trevett of Newport in 1786 bought meat of Wceden, the defendant, who was a buteher by trade, and tendered bills of the cmis- sion of the preceding May in payment, which were refused. A com- plaint was filed against Weeden, and the ease was taken into the Superior Court, then in session. The ease eame up for trial and was tried on a plea to the jurisdiction, assigning three reasons why the eourt should not take eognizanec of it. The first was because it was apparent from the act on which the information was founded that the aet had expired. Second, because the matters of complaint were tri- able by special eourts uneontrolled by the Supreme Judiciary Court of the State. Third, that "the court is not authorized or empowered by said aet to empanel a jury to try the faets charged in the informa- tion, and so the same is uneonstitutional and void".
The next day the court gave judgment, which was "that the said complaint does not come under the eognizanee of the justices here present and that the same be and is hereby dismissed".
No reasons are given for the decision. According to the Newport Mereury of October 2, 1786, Judge Howell deelared "the penal law to be repugnant and uneonstitutional". Judge Davol was of the same opinion. Judge Tillinghast took notice of the striking repugnancy in the expression of the act "without trial by jury according to the laws of the land", and Judge Hazard also voted against taking eognizanee. The chief justiec declared the judgment without express- ing his own opinion.
The position of the court was a difficult one. The State was full of a wild and feverish fanaticism. They were the creatures of the Assembly, holding their offiees by a yearly tenure. They faced a party that demanded the enforcement of the paper money laws at any cost. They confronted a bankrupt State and an impoverished country. Probably a majority of the citizens looked upon the laws in question as affording the only solution to the difficulties with which they were surrounded. Viewed in this light the decision of the court shows a high degree of moral courage, and yet the mere decision, so far as the point actually decided, which is all the case ean stand for, was merely that the court had no jurisdiction in the matter. The aet pro- vided for a special court, and henee the Superior Court was without jurisdiction in the premises. This is all the ease deeides. To cite it
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as deciding the unconstitutionality of the act is to give it a weight which the court not only did not attach to it, but which in their argu- ment before the Assembly, when cited to show cause for their decision, they expressly deny.
While it is true, however, that the actual decision was that the court had no jurisdiction, still the arguments before the court had been based entirely upon the constitutionality of the act; of its in- validity owing to the fact that it deprived a citizen of the right of jury trial, and for other reasons, and so the effect of the decision so far as its moral weight was concerned was great. To the layman and to the average citizen it meant that the information was not sustained.
It is in the subsequent proceedings before the Legislature that the court stand forth with impressive dignity as champions of their rights and as asserting the independence of the judiciary from any control by the Legislature. The Legislature had understood the decision of the court as deciding that their act was unconstitutional. This clearly appears from the language of the resolution by which they cited the court to appear before them. "Whereas", it says, "it appears that the Supreme Court declared an act of the Supreme Legislature to be unconstitutional and void". There is no uncertainty in the minds of the Assembly as to their powers; no diffidence in their manner of asserting them. A Supreme Legislature they had been for two hun- dred years nearly. Supreme in many ways they were to remain for several decades to come ; but the effect of this decision, the firm position taken by the court at this time in answering the attack made upon them, was such that from this point can be clearly marked the parting of the ways that was to lead the one branch of the government to its proper position in the State. The court were cited, as before stated, to appear before the Assembly and show cause for their decision. The record of the Assembly states, "that whereas the justices of the Su- preme Court of Judicature have by a judgment declared and adjudged an act of the Supreme Legislature of the State to be unconstitutional and so absolutely void, and, whereas, it is suggested that the judgment is unprecedented and may tend to abolish the legislative authority thereof", etc. Three of the judges attended the summons, the chief justice being indisposed, and Judge Howell in his argument pointed out clearly the fact that although the pleadings and arguments raised the question of the constitutionality of the act, that the court did not decide this point, but merely passed upon the question of jurisdiction. This error as to the decision of the court has been repeated by so many learned commentators upon this subject, that it is with diffidence that the present writer calls attention to the fact, which an examination of the report of the trial and hearing before the Assembly make plain to any one who examines the subject carefully. His view has also the
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