USA > Rhode Island > Providence County > Providence > State of Rhode Island and Providence Plantations at the end of the century : a history, Volume 3 > Part 12
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75
110
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS.
support of a prior authority whose critical judgment in a matter of this nature is beyond question.
In the discussion of the case, however, the court, placing one side the question as to what was decided, discussed the abstract question of the right of the Assembly to call them to account, whatever might be their decision upon a question brought before them. They notified the Legislature plainly, and in so many words, that for the reasons of their judgments upon any question before them they were accountable to God and their own consciences, and not to the Assembly. Said Judge Hazard, himself a paper money man: "It is well known that my sentiments have fully accorded with the general system of legisla- tion in emitting the paper currency. But I never did, I never will, depart from the character of an honest man to support any measures, however agrecable in themselves. If there could have been a prepos- session on my mind, it must have been in favor of the act of the Gen- ral Assembly, but 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". Such were the men that occupied judicial seats in those days. The Assembly deliberated upon the subject and decided that they were not satisfied with the reasons advanced by the court, and a motion was made for dismissing them from their offices. After an extended de- bate, however, as it appeared that they were not charged with any criminal intent, they were discharged.
To be retained in office for such a reason might afford ground for the impression that the victory won by the court was but barren in its results. But this is not true. The case of Trevett v. Weeden stands as one of the most important points marking the struggle of the judiciary in this State. Up to that time the advance had been small. By this decision and the subsequent action taken by the court, an advance was made that was to endure. It was this case that made the case of Taylor v. Place, to be spoken of in its proper place, possible. The courage and manly conviction displayed by the court then, placed a barrier to the aggression of the Legislature in some directions, for all time.
In the discussion of this matter we have referred to the character of the court as then constituted. Although hardly connected with the above, it still is not out of place to speak at this time of one other notable instance of the triumph of the law over the popular prejudice in this State. It occurred in 1772, in the height of the pre-revolu- tionary excitement. The guns of the Gaspee were from the harbor a menace to the homes and lives of the citizens of the Colony. Partisan feeling was at the highest point. It is the knowledge of these facts that makes the case a memorable one. One Hill, of Wrentham, was
111
THE STRUGGLE FOR JUDICIAL SUPREMACY.
detected by the committee of inspection at New York in selling goods included in the non-importation agreements. They induced him to deposit the property with a merchant until the revenue acts should be repealed. A mob scized the goods and destroyed them. Hill brought an action in the courts of Rhode Island, where he succeeded in finding property belonging to some of the committec, alleging that he had given up his goods upon compulsion. The case was tricd before the Superior Court upon appeal from the Court of Common Pleas, where a verdict had already been rendered for Hill. The ablest counsel in the Colony were employed upon either side. The public feeling nat- urally was strongly against the plaintiff. His claim was adverse to the cause of liberty. The judges were subject to annual clection ; the jurors were returned from different towns in the county of Providence and were practically judges then of both law and fact. The Superior Court confirmed the judgment of the Court of Common Pleas and gave the plaintiff damages for two hundred and eighty-two pounds. This verdict shows a reverence for law and a regard for justice on the part of both bench and jury which entitles them to the highest praise. The election of the same judges for another term a few weeks later by the Assembly shows as well an appreciation for law and order by the people at large that is even more remarkable. It is fitting that such instances as these should be remembered and that honor be rendered to a people showing such characteristics at such a time.
We have seen that despite the denial by Great Britain of the right of the Assembly to act as a court of appeal, that that body had continued, almost by subterfuge in reality, to act by way of petition, exercising practically the same authority. Indeed, the pro- cedure of this body when hearing petitions differed in hardly any respect from that of a court. A body of rules was adopted by an act of the Assembly which prescribed the manner in which appeals should be brought before them. Any person who petitioned the Assembly praying that any judgment or determination of the courts of the Colony might be set aside, or that execution might be stayed on a judgment rendered against him, was required, at least three weeks prior to the next session of the Assembly, to file his petition with the secretary of state and at the same time give a bond to pay the costs of the proceedings. Thereupon the secretary issued citation which was served by the sheriff upon the adverse party, requiring him to appear and show cause why the prayer of the petition should not be granted. At the beginning of the session a time was assigned for hearing these petitions. The clerk of the lower house of the Assembly kept a docket, and at the time assigned the cases were called in their order. If the petitioner did not appear, the petition was dismissed, practically a non-suit. If the respondent in turn did not put in an appearance, the petition was granted; practically a default. Can any
112
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS.
one say that this was not a judicial body and a judicial proceeding, in reality if not in name ?
For a period after the Revolution and before the adoption by the Colony of the Federal constitution, Rhode Island was a free and independent State. No constitution other than the charter of 1663 and the laws enacted under it bound the Colony. No one could ques- tion any act of the Assembly. For that short time at least they were supreme. After the acceptance of the Federal constitution affairs were conducted praetieally in the same manner. That clause of that instrument which guaranteed to every State a republican form of gov- ernment was little understood or, if appreciated, not observed. The Assembly down to the adoption of the constitution of 1843 exereised their power both as a court of original jurisdiction in some cases and as a court of review in others without serious question.
This constitution of 1843 contained several clauses, which, as the disputed points around which the future controversies turned, should be considered herc. One was: "The General Assembly shall eon- tinue to exercise the powers they have heretofore exercised, unless prohibited in this constitution" .- Art. IV, sec. 10. Another, "The Supreme Court established by this constitution shall have the same jurisdiction as the Supreme Judicial Court at present established" .- Art. XIV, see. 3. Another, "The enumeration of the foregoing rights shall not be construed to impair or deny others retained by the peo- ple" .- Art. I, see. 23.
After the adoption of this constitution, whatever the judicial appre- ciation of these clauses may have been, the Assembly evidently consid- ered that either by virtue of them or apart from them, their powers remained. This is plain from the fact that they continued to exercise them. It is difficult, as has been said before, to understand their position in the light of the present day, or in the light of the decisions upon the political system of the Federal and State governments. The
differentiation of powers; the trinity of the branches of the govern- ment ; the meaning of a republican form of government, had been a matter of political theorizing, of debate and of actual application for over fifty years. And yet in this State the people, the courts and the Assembly had continued in their traditional paths as though such a matter had no practical meaning within the limits of the State. It can hardly be doubted that the court, at least, after the adoption of the constitution, before any utterance of theirs upon this subject, must have realized their position and compared it with the constitutional position to which they were entitled under that instrument, and under our form of government as then in operation for several decades. And yet it was not until the year 1855 that this question eame plainly before the court. It is interesting to see how the court met it. In January, 1854, an act had been passed by the Assembly reversing and
113
THE STRUGGLE FOR JUDICIAL SUPREMACY.
annulling the sentence of Thomas W. Dorr for treason and directing the clerk of the Supreme Court to write across the record of the judg- ment, the words, "Reversed and annulled by order of the general as- sembly". The following year the political complexion of the Assembly being different, a resolution was passed asking the opinion of the court as to the constitutionality of such act. The court, in their opinion, replied that under the constitution two separate and distinct departments of the government were created; the judicial and the legislative; each vested with exclusive power in its proper sphere. That such power exclusively conferred upon one department was, by necessary implication, denied to the other. Neither, said the court, could the section of the constitution which provided that the Assembly should continue to exercise the powers theretofore exercised by them, unless prohibited in the constitution, be regarded as conferring judi- cial powers, for the reason that it was found in that part of that instrument treating of the legislative power, and further that all judicial power was prohibited to the Legislature by implication-by the great principle of the distribution of powers.
After this definition of the distinction between the two branches of the government, so correct in principle, it is very remarkable to observe the manner in which they fail to decide the very question before them. From the time of the adoption of the constitution the Assembly had continued to exercise judicial powers. They had granted petitions for new trials in suits at law, the trial to be had in the proper court. They had heard and decided appeals from the judg- ments of the Supreme Court on insolvent petitions, and in this latter class of cases their judgment was final. With these facts before them the court say :
"Undoubtedly this practice of the Assembly, since the adop- tion of the constitution, being a continuance of a similar practice which prevailed down to that time, was supposed to be au- thorized by this section, and we do not mean to intimate the slightest doubt of the validity of these proceedings. But it will be seen that they involved powers which the Assembly were in the practice of exercising down to the time of the adoption of the constitution and subsequent thereto.
"The previous practice of the Assembly to exercise a particular judicial power, although continued down to the adoption of the con- stitution, is not, in our judgment, alone sufficient to authorize its ex- ercise now.
"If the power has been discontinued since the adoption of the constitution and its exercise is inconsistent with the provisions of that instrument, we are bound to suppose it was discontinued on account of such inconsistency.
"But if the practice prevailed before and after, and has been 8-3
114
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS.
acquieseed in by the people, we do not mean to say sueh praetiee may not be valid upon the ground of construction by acquieseenee and the danger to titles from now disturbing it".
This was a truly remarkable proposition, the conferring of con- stitutionality upon acts clearly unconstitutional, through the mere exereise of an uneonstitutional power and the aequieseenee of the people therein. The court proceed to distinguish the various judicial aets performed by the Assembly. They found that they were in the liabit of entertaining petitions for new trials, but that such trial was to be before the court in which the suit was pending. That these peti- tions were preferred under a general law, passed for that purpose, as were also appeals from the Supreme Court on petitions for the benefit of the insolvent aet, although in this latter elass the Assembly reversed the judgments of the Supreme Court by a final judgment. The court held, however, that these eases were no precedent for a reversal by a final judgment of the Assembly of a judgment of the Supreme Court upon an indietment for an offense exelusively within the jurisdiction of such eourt.
It is elear from what has been quoted from this opinion that the ease falls far short of establishing the judicial department of the State in its true position. It was not until the year 1856, in the ease of Taylor v. Plaee, that the point so long debated was finally and defi- nitely settled.
At the Deeember term of the Court of Common Pleas in 1853,' after a trial, a verdiet was rendered for the plaintiffs in this suit, and thereupon the defendants appealed to the Assembly for relief against the verdiet, upon the ground of aeeident and mistake. Due notice of this application for relief was given to the plaintiffs, and at the January session of the General Assembly, 1854, after the usual hear- ings before the respective committees of the two houses, the following vote was passed :
"Upon the petition praying therein for reasons stated for new trial and for leave to make further affidavits,
"Resolved, that the prayer thereof be and the same is hereby granted, and the said defendants are hereby authorized and empow- ered to make further affidavits and said eourt is authorized to receive the same, with the same effeet as if the same had been filed at the first term of the pendeney of said suits, and to stay proceedings and to suspend judgment in a eertain suit growing out of said suits".
By the passage of this aet the question between the Assembly and the court was brought squarely to an issue.
The opinion in the ease was written by Chief Justice Ames, and in the light of the extended diseussion of this question, from the settle- ment of the Colony, which has been made, deserves more than a mere passing glanee. The exaet position of the parties must be remembered.
115
THE STRUGGLE FOR JUDICIAL SUPREMACY.
It was more than a mere ease of a plaintiff upon one side and a defendant upon the other. The court were confronted by an Assembly upon the side of the defendants; a legislative body which had ex- ereised powers praetieally unquestioned for nearly two hundred years; allied with this body were a large portion of the citizens of the State who looked upon the rights exercised by their representatives as rights practically of their own. Against this unbroken exereise of prerog- ative, against this sentiment, was arraycd, so far as this State was coneerned, a few scattered instanees in the records where the Assembly had had doubts more or less sincere of their authority, and the vaeillat- ing opinion in the Dorr case. The opportunity was presented to the court to define the constitutional limitations upon the departments of the government, and Judge Ames was not found wanting either in ability or eourage. His opinion is masterly, not only as a definition of the constitution of this State, but as an exposition of constitutional law in its broadest extent.
Speaking of the exereise of this power by the Assembly, Judge Ames says: "If the law-making department in our government has also the power to interpret and to enforce their interpretation of the laws, either aeting wholly by itself or by direeting and controlling as a superior tribunal, all other tribunals of the State, every friend to a settled and well ordered administration of justice, every lover of free government itself, has, indeed, cause to mourn. It was the celebrated maxim of Montesquieu that 'there ean be no liberty if the power of judging be not separated from the legislative and executive powers'."
He quotes from Hamilton, "that from a body which had even a partial agency in passing bad laws, we eould rarely expect a disposi- tion to temper and moderate them in the application. The same spirit which had operated in making them would be too apt to influenee their construction ; still less could it be expected that men who had infringed the constitution, in the eharaeter of legislators, would be disposed to repair the breach, in that of judges. The members of the Legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges".
Judge Ames further says: "An independent responsible judi- ciary is the only safeguard of our property, lives and liberties. Taught by our own experience, the people of this State have been steadily advancing towards it, until in the constitution adopted by them only in 1843, they supposed that they held it firm and seeurely in their grasp. If the vote in question be constitutionally valid, then this just expectation is but a dream and illusion. If the General Assembly may constitutionally exercise judicial functions, then uniting in sub- stanee all the powers of government, it is, except so far as its power is bounded by the constitution of the United States, constitutionally omnipotent and irresponsible. If by the constitution the Assembly
116
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS.
possesses any judicial power, there is logically no limit to it; it pos- sesses all. It has only to search its ancient archives and it can find a precedent for the exercise of every species and degree of this power- from the hearing of appeals from judgments of its Superior Court of Judicature-from the exercise of every power which has been exercised by courts of equity, down to the setting aside the judgments and grant- ing of new trials, in the pettiest cases at law, decided by magistrates in the Colony or State".
There is no escape from such logic as this; it is unanswerable. The position taken by those in support of this authority was none too strongly stated by the court in quoting the contention of counsel in a former case, to the effect that the Assembly, having been originally the only court in the State, had exercised common law, chancery, pro- bate and admiralty jurisdiction and had never parted with its chancery jurisdiction, being, as had been stated, "the best court of chancery in the world".
But now the court declared, under the constitution, whatever might have been the rights of the Assembly in the past, the old order had changed. The powers of government which, under the old charter had been aggregated in the Assembly, were now distributed among the appropriate departments; 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 encroachment upon the just limits of its own.
The court held that the distribution of powers under the constitu- tion of 1843 was evidently made for the special purpose of depriving the Assembly of their long exercised judicial power, which rightly or wrongly that body had assumed under the charter. As a ground work for this deprivation and to meet the new exigency, the judges of the Supreme Court, who, under the charter, had, like all other officers, been of annual appointment by the Assembly, were endowed with a firmer tenure, that of good behavior. Again, the Legislature was em- powered to increase the jurisdiction of the Supreme Court, but they could not decrease it, and the court was given the jurisdiction which had been exercised by the former Supreme Judicial Court.
The court declare very truly, what has been noticed by us and cited as one of the striking features of this controversy, that the ques- tion was not a novel onc. They cite to sustain their position the well settled decisions arising under the Federal constitution and which had been the law of the land for many years.
In the light of all this, say the court: "When we are told that the Assembly, from the earliest colonial times down to the adoption of the constitution in 1843, always exercised at will judicial power, and especially the judicial power of a court of chancery, and that by the
117
THE STRUGGLE FOR JUDICIAL SUPREMACY.
tenth section of the fourth article of the constitution they were to continue to exercise the powers they have heretofore exercised, unless prohibited in this constitution, our short and true reply is, that the exercise of judicial, and especially of chancery powers, is prohibited by the constitution ; and that we must be false to history, right reason, the settled rules of judicial exposition, the established meaning of the language of the constitution as given unvaryingly by the highest au- thority and with that meaning adopted by the people in adopting the constitution, and so false to both the people and the constitution, if we come to any other conclusion".
And then comes the following sentence, which opened up a new line of thought for the social economists of that time: "When we are told that since the adoption of the constitution the Assembly have, nevertheless, with the assent of some of the framers of it, exercised occasionally judicial powers, our reply is, that neither the convention which framed the constitution, nor its members, nor the members of the Assembly, nor even the Assembly itself, can authoritatively ex- pound the constitution, but only the courts".
This was indeed new doctrine; at last a tribunal had arisen to which that body that, for over two hundred years of the history of the Colony and State had exercised supreme power over its affairs, must defer. We shall see whether this doctrine was acquiesced in without question or not.
There is not opportunity to examine this opinion more closely or at length, but from the date of its being handed down by the court, it forever placed a boundary to the usurpation of the Assembly. It marks sharply the end of the old power and it denoted the beginning of a new era.
It was scarcely to be expected that a decision which made such a radical departure from the established custom of the State would be at once accepted by the citizens without dissent. Those supporting the former practice based their arguments upon that clause of the constitution, which has been referred to, which they claimed was mandatory, that is, "that the Assembly shall continue to exercise the powers they have heretofore exercised, unless prohibited by this con- stitution". Claiming this clause to be mandatory, they further claimed that it could not be set aside by any implied or less mandatory grant of power in the same instrument. Of the members of the con- vention that framed the constitution of 1843, seventeen of that number were subsequently members of the General Assembly that adopted the digest of 1844. In that digest was an act entitled "An Act for prefer- ing petitions to the General Assembly and acting thercon," which prescribed the forms and modes of proceeding of petitioners who should prefer a petition to the Assembly, praying that any judgment, rule of court or determination might be set aside, or that execution
118
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS.
might be stayed, or for any matter or thing whereby any action or procecding in any court might be stayed or delayed. It further pre- scribed the procedure to be followed by the Assembly in acting thereon. It is readily seen that this statute was a simple re-enactment of the former statutes upon the same subject, which have in an earlier portion of this history been referred to at length. The proceedings to be followed were the same. Under this statute, as we have also seen, the Assembly did continue to exercise many of the powers that it had previously exercised. Even the most ardent advocate for the constitution must admit, in view of this, that to some of the framers of the constitution no change in the character of the form of govern- ment, no striet separation of the departments, was apprchended or intended; but yet, on the other hand, it is not for a moment to be supposed that those men who were responsible for the drafting of that instrument and for the clauses and sections which constituted the future government of the State upon recognized constitutional lines, did not understand the meaning of the words they used, or did not intend to frame a republican form of government. They framed a constitution based upon the Federal constitution; they used words. and phrases used in that instrument, words which had been construed and had a readily ascertainable meaning, and they undoubtedly used them and intended to use them with such meaning. In view of that, it is difficult to understand why such a statute was passed as we are discussing, or why the practice of the Assembly under it was allowed to pass without dissent.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.