USA > Rhode Island > Providence County > Providence > State of Rhode Island and Providence Plantations at the end of the century : a history, Volume 3 > Part 13
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The only answer that can be made is, that, as has been shown, the Colony and State had been unique in its system of government. Fear of legislative encroachment was common to many of the New England colonics, and various safeguards were devised to guard against it. But more than all other reasons is the fact that for so many years the upper house of the Assembly and the Supreme Court of the Colony had been one and the same body. Such being the case, there was nothing incongruous in the idea that the Assembly which adopted should also pass upon the laws. The country was ever jealous of the cities and their growing power. In the courts the people were accustomed to see a body of men which was practically elected through their suffrage; not a body constituted and set apart by others, to adjudicate upon their persons and their property. When the upper house of the assembly ceased to be ex-officio the court as. well, still the Assembly exercised supervisory power over the courts, and it was not recognized that any rights had been parted with. It was this desire to retain this right, which was the motive back of the continuance of this former act, regulating appeals to the Assembly.
That the court itself was afraid to change the old order and was itself uncertain as to its powers and, the rights of the Assembly, has.
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been shown in the discussion of the Dorr ease, where the court eer- tainly go very far toward recognizing and admitting the rights of the Assembly.
We have referred to the fear of judicial oppression as being common in the Colonies. Especially was this true in Rhode Island, and in this Assembly the people saw a safeguard provided for them against oppression from the judiciary; a representative body of the people, such as they were themselves, who eould appreciate their needs and were bound by no hard rules and customs of the common law. Upon this question of the rights reserved to the Assembly under the clause of the constitution above referred to, even so great an authority as the late Chief Justice Durfee appeared to have some uneertainty as to whether there might not be some powers which the Assembly might exereise thereunder, although of a judicial character.
In his "Gleanings", in a note to page 64, he says: "In Rhode Island the General Assembly has the entire legislative power; but it has also powers which are not strictly legislative. The judicial power is in terms conferred upon the eourts and aeeordingly would belong to them exelusively, without doubt, but for the other provision, being section 10 of article IV [the clause under diseussion]. In any eon- troversy between the Assembly and the courts as to whether the Assembly has, in a partieular enaetment, exeeeded its province and usurped a power belonging exelusively to the eourts, two questions may come up for decision. The question may be, first, whether the power exereised in the enactment was judicial. This is a question of constitutional law and must be deeided as such by the court. If the power is held to be judieial, then the question is, whether, notwith- standing it is judicial, the Assembly has not the right to exercise it under section 10. The Supreme Court decided in Taylor v. Place that no such right is reserved to the Assembly by seetion 10, because seetion 10 only reserves to the Assembly such powers as are not prohibited, and the grant of the judicial power to the courts prohibits it by im- plication to the Assembly".
The unanswerable logic of the opinion of Judge Ames is a suffi. eient reply to any question as to whether any portion of judicial power was intended to be reserved to the Assembly under the seetion referred to. It is sufficient to say that the constitution must be read in the light of the Federal constitution, upon which it was elearly based.
Although the decision of Judge Ames settled this question so far as the law was concerned, it was not until the elose of 1860 that the subjeet eeased to be agitated by the people and by the Assembly.
As the consideration of this subjeet in its later aspects involves as well a diseussion of the equity powers of the eourts of this State, both at the present time and in the early days of the Colony, it is necessary
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to consider the origin and development of such powers as briefly as possible.
These powers which to-day form in many respects the most im- portant portion of the jurisdiction of the Supreme Court and most intimately affect the rights and privileges of the people, were of very slow growth. In 1667 power was granted to the courts to proceed where any penalty, conditional estate or equity of redemption was sued for, according to the rules of equity and to chancerize for- feitures. It will be remembered that in 1705 the Assembly was re- quested to establish a court of chancery, but that that body determined that they were a sufficient court in themselves, and continued to ex- ereise practical, if not technical, equity jurisdietion, as theretofore. In 1708, after the adverse decision of the English Couneil upon the question of the exereise of judicial powers by the Assembly, the latter provided for the establishment of a court of chancery, but nothing was done in this direction until 1741, when a court of equity was eon- stituted by the Assembly, in reality a court of appeals rather than one exercising chancery jurisdiction proper; but in 1743 the court was abolished.
In 1798 the eourt was empowered to entertain a bill to redeem and in 1822 a bill for foreclosure. At the same time jurisdiction on appeal from town eouneils was granted over property held for charita- ble uses.
In 1829 jurisdiction was extended to all eases relating to trusts created by assignments for the benefit of ereditors; in 1836 to eases relating to trusts however created; to controversies between co- partners ; to proceedings against banks for forfeiture of charter and for liquidation, and in 1837 against railroad and turnpike corpora- tions to restrain them from violating their charters.
In 1841 the eourt was given full equity powers in eases of fraud. Under the constitution of 1843 "chancery powers may be conferred upon the Supreme Court, but on no other court to any greater extent than is now provided by law". This short review shows that the growth of equity powers and jurisdiction has been very slow in this State. The development was along conservative lines, sueh powers being granted as the necessities of the times and the advaneing eiviliza- tion required. Under the constitution and by virtue of the elause quoted above, full equity powers were conferred upon the Supreme Court, and have been exereised by it since that time.
At the time then when the decision was rendered in Taylor v. Plaee the Supreme Court had practically its present full equity powers. This, however, was equally an innovation. Among many the chancery powers of the court aroused even greater antagonism than the claim made by it to be recognized as a co-ordinate and independent branch of the government. For one reason, the peculiar and not fully
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understood practice of the Court of Chancery rendered it distasteful to many; for another its vast and far-reaching powers made it dis- trusted and feared. The well known statement that the General Assembly "was the best court of chancery in the world" was believed by many. Such being the condition of the publie feeling among a large number of the people, the Hazard-Ives controversy, which arose about this time, added fuel to the flames. It is not the intention to go into a history of this controversy, which for years stirred the people and arrayed them into faetions. The merits of the ease were agitated annually before the Assembly; from house to house and from com- mittee to committee. With its merits we have nothing to do, but as illustrating the attitude of the people and the Legislature toward the court, especially in the light of its newly-claimed prerogatives, it is of the utmost value. We have said that Judge Ames's decision settled the law, but it was the arguments advanced in the discussion of the Hazard petitions in the Assembly that definitely settled the contro- verted points. With the termination of this dispute, the elaims of the court were recognized henceforth as the law of the land. After the decision of the court upon a bill in equity for specific performance, relief was sought as of old in that body to which appeal had been made for two centuries. The petitions sought, among other relief, a new trial of the case, and a limitation and restriction of the equity powers of the court. The subject matter was discussed at length, the Assem- bly, despite the decision in Taylor v. Place, apparently treating the question as of yore. At length, in 1859, a report was made to the Assembly by the committee having the matter in charge, which report, after recommending that one petition be continued, required the peti- tioner to notify one of the adverse parties of its pendency, as required by the statute (then in 1859 still upon the statute book of the State) regulating petitions to the Assembly. The report further recommended the passage of a resolution declaring that in assuming equity jurisdic- tion in the ease, upon which a decree was issued by the Supreme Court, the said court exceeded the authority conferred upon it by the General Assembly, and that the equity proceedings in said case should be wholly amended, revoked and annulled, and the complainant left to seek his remedy before a court of common law, in conforinity with the requirements of the constitution and laws of this State. This resolu- tion, as appears, was simply a rejoinder to the judgment of the court as previously declared-a reaffirmation of the power of control over the courts. However, it was the last and final struggle in this confliet, which has been followed for two centuries. The report further coin- cided with a previous report referred to therein, viz., "that in in- stances where the court have exceeded the power conferred upon them or have exercised those powers in an oppressive or an unauthorized manner, the General Assembly has the undoubted right, and is in duty
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bound, to rectify such abuse of power, either by ordering a new trial or in such other manner as will promote the ends of justice. That this power is lodged in the Assembly, to be exercised for the preservation of those personal and invaluable rights secured to every citizen, in the constitution and bill of rights. Were it not so, the court would be, in fact as well as in name, supreme, and the citizen in constant danger of being deprived of his property or his liberty without redress. Legislative wrongs can be remedied by the repeal of the obnoxious pro- visions, through a new Legislature. Executive oppression can be ter- minated by the potent influence of the ballot-box, but where is the remedy for judicial wrongs if there is no power in the State to inter- fere with or correct them? Previous to the formation of the State constitution this power was constantly exercised by the Assembly, and, as we believe, that right is clearly recognized in that instrument itself. In section 10 of art. 4 of the constitution it provided that the General Assembly shall continue to exercise the powers they have heretofore exercised, unless prohibited in this constitution. However desirable it is in such an instrument to have every power of each branch of the government clearly defined, there evidently was something left un- defined in the instrument itself, or else this clause is not only unneces- sary, but calculated to mislead and deceive. There was some power meant to be recognized as existing in the Legislature by that section, which is not expressed there, but which had been so long recognized and exercised by that body that the framers of that instrument thought it unnecessary to insert a power so long used and so clearly understood by the people, the Legislature, and the convention itself, as to become of the nature of a constitutional provision. In cases where people have lost their right to a new trial before the court by accident or the fraud of the other party, this power has always been exercised, and there would seem to be a peculiar propriety in exercising it in that class of cases at least. This power has been exercised as well under the . constitution as the charter and without question, until very re- cently. Again, in sec. 3, art. 14, of the constitution, it is provided that the Supreme Court, established by this constitution, shall have the same jurisdiction as the Supreme Judicial Court at present estab- lished. Now it is undeniable that the Assembly did exercise a super- visory power over the Supreme Judicial Court previous to the adoption of the constitution, to the extent of ordering new trials. This would seem to show that the framers of the constitution acted advisedly, when that clause was inserted, as a check to the court and for the safety of the people. But then, it is said, that the Legislature have no right to grant a new trial, because the constitution provides that the judicial power of the 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. This, however, is not conclusive, for it does not neces-
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sarily follow that because the Assembly order a new trial before the court, it therefore assumes judicial power; since it does not by such act take upon itself to try the case over again, but merely directs the body clothed with judicial power to try it. If this clause does prohibit the Assembly from exercising the power referred to, it does not do so directly, but by implication only, while the uniform exercise of that power hitherto is no inconsiderable argument, to show what has always been understood as being implied in the tenthi section of article four, as to the power of the Legislature to order new trials. But is it safe to rest this prohibition upon implication only ? It is well known that, under the charter, the Assembly exercised the amplest power of grant- ing new trials, and many other powers, some of which are expressly prohibited by the constitution. Take, for an illustration, in article four, section thirteen, the General Assembly are prohibited from con- tracting debts over a certain amount, a power which it had under the charter, and would now have but for this prohibition. Now, is it to be supposed that the convention meant positively to prohibit some things and by implication prohibit others ? If so, would it be so very explicit in regard to the increase of the State debt, and then so vaguely, and by implication, prohibit the exercise of so great and im- portant a power as the ordering by the Assembly of a new trial; a power so long used and so highly valued by the people? This would imply that the convention was more regardful of questions of mere dollars and cents than of those great and fundamental principles of justice, liberty, equity and right, which have ever been a distinctive characteristic of our people. Whether this power should be exercised or not must be determined by the merits of each particular case in which its exercise is sought, and in view of that sound discretion and nice sense of right which ought and is supposed to be characteristic of every legislature.
"In the case Taylor v. Place it is intimated by the court that, although the Assembly is competent to confer power upon the court, and enlarge their jurisdiction from time to time at their discretion, yet this Assembly have no power to diminish or restrict that power or jurisdiction. If this be the meaning of the court, then its jurisdiction and power may go on enlarging until it absorbs all the powers of the government; for if each enlargement of its jurisdiction is to be con- sidered as a permanent enlargement, not capable of being restricted, or as a sort of vested right which cannot be divested, it would soon have such a controlling influence over the other branches as completely to nullify the legislative and executive powers and dictate to them respectively what they can or cannot do. This is claiming a much greater power over the legislative branch than the Legislature ever claimed to exercise over the courts.
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"But your committee are of the opinion that the General Assem- bly ean diminish, limit, restrict, and define the powers and jurisdiction of the court; and that it is their duty so to do if, in their opinion, there is a liability to abuse or oppression, or the people require such restriction and limitation. The exercise of equity powers, in as full and ample a manner as the same is now elaimed and exercised, is, perhaps, the most objectionable of the powers of the court. The ex- ercise of this power by the court has always been viewed with jealousy by those aeeustomed to the more speedy and surer remedy of the eom- mon law and trial by jury. A large portion of the people of the State hold to the opinion that equity powers ought not to be exercised when the party can obtain his remedy at common law. This power, though distasteful to a large portion of the State, has been gradually ae- cumulating until it has assumed its present colossal proportions. By what means this increase has been brought about in the face of this popular opposition to its exereise is one of the inexplicable phenomena of this progressive age". The committee recommended the passage of an aet aecompanying their report limiting and defining the equity jurisdiction of the eourts. This report in almost its full length has been quoted for the reasons, first, that it is probably as good an argu- ment as could be made on that side of the ease, and, second, that it undoubtedly reflected the opinions of a large number of the people of the State. It must be considered that this report was rendered as late as 1859, so it is apparent how little appreciated or understood by the Assembly had been the argument of the court. The theory of separate branches of the government, with an independent judiciary to adju- dieate upon constitutional questions, whose decision should be final so far as the State was eoneerned, was ineomprehensible from the point of the view of the Assembly. A "supreme" court, in the words of the Assembly, would be a danger to the State, a menace to the rights and liberties of the people. Therefore, in place of a court composed of men selected because of their learning in the law, their probity and uprightness, they would substitute as supreme arbiter of the rights and liberties of the citizens a fluctuating body, subject to annual ehange, composed of men drawn from all walks of life, unskilled in questions of law. This body, we are to believe, was to be a safeguard against judicial aggrandizement. But it is to be seen from the report quoted that in the increasing equity powers of the court was the greater danger apprehended. The committee state the view of a large part, as they say, of the people of the State that equity powers ought not to be exercised when the party can obtain his remedy at eommon law. In this statement the committee disclose a woful lack of under- standing of equitable jurisdiction, which no previous course of action by the courts ean be considered responsible for. It is the duty of
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equity to supplement the law, and the jurisdiction of equity never will be exercised when the party has an adequate remedy at law. An adequate remedy, not simply a remedy. It was a confusion of terms and a want of appreciation of what equity really is that led the Legislature into this error. From this report, representing the views of the champions of an independent and unrestrained Legislature, let us turn to the arguments advanced in support of the position taken by the court. And with this final consideration of this question in its last appearance before the Legislature and in the vindication of the claims of the court, we shall turn to less technical and perhaps more interesting features of the judicial history of the Colony and State.
The name that should be joined with that of Judge Ames, as representing the final triumph of a republican form of government in accordance with the intent of both the Federal and State constitu- tions, in this Commonwealth, is that of Thomas A. Jenckes. The one upon the bench, the other upon the floor of the House of Representa- tives, declared the principles upon which this government is based and upon which its hope of perpetuity rests, in words whose logic, learning and power were alike convincing and unanswerable. In discussing the report of the committee above referred to, the speaker referred forcefully to the common sense of the people at large, and stated his belief that if the subject was brought home to them, if they were brought to look at the origin of the government and the principles which regulated it and the spirit upon which it should be administered, that their conclusion would be correct. That this view was correct is shown by the fact that the constitutional rights of the court, once understood and recognized, were admitted unquestionably from that time.
After showing that the Legislature had conferred full and com- plete equity jurisdiction upon the Supreme Court, the great question in the controversy was taken up; reduced to the simplest point, it was this: What body was to construe and interpret the laws of the State, the Legislature or the court ? We quote the argument of Mr. Jenckes : "We find in the constitution an article declaring that 'the judicial power shall be vested in one supreme court and in other courts to be established by the general assembly'. What is the judicial power ? We look abroad to the constitutions of Massachusetts, of Connecticut, of New York, of other States, and of the United States, and we find what the judicial power is there declared to be. What meaning have those words in the constitution of every State of this country and in the constitution of the United States ? We find where such language has been used in those constitutions that it has been declared to mean the entire judicial power that exists under that constitution. If any particle of judicial power exists elsewhere, then the meaning of those
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words is not satisfied. In the convention [that framed the eonstitu- tion of 1843] sat General Jackson, bred to the law. 'There,' said he, 'is the great examplar, the constitution of the United States. All the States of the Union that have framed constitutions, since 1787, have adopted that language [referring to the judicial power] ; let us adopt it. The language of the constitution will be uniform here with what it is elsewhere'. That was the argument and it prevailed. That there should be no special or different language from that which was eon- tained in the constitution of the United States. And place them side by side-the tenth article of our constitution and the third artiele of the Federal constitution-and you will find them the same, word for word, so far as relating to the grant of judicial power. All the in- ferenees that ean be drawn from the debates of that convention is that they adopted the model of the constitution of the United States in all that pertains to the judiciary".
The speaker then in a eoneise review of the judicial history of the Colony from its foundation down to the time of the Revolution, and thenee to the adoption of the Federal constitution, shows elearly how the adoption of judicial funetions and powers by the Assembly was a usurpation, pure and simple, aequieseed in by the people owing to the difficulties eonneeted with an appeal to the English authorities. After 1790 the Assembly continuing to exereise judicial power, had come into confliet with the Supreme Court of the United States. This eourt said : "In a government professing to regard the great rights of personal liberty and property and which is re- quired to legislate in subordination to the general laws of England, it would not lightly be presumed that the great principles of Magna Charta were to be disregarded or that the estates of its subjeets were to be taken away without trial, without notiee and without offense. Even if such authority could be deemed to have been confided by the eliarter to the General Assembly of Rhode Island, as an exereise of transeendental sovereignty before the Revolu- tion, it ean seareely be imagined that that great event eould have left the people of that State subjected to its uneontrolled and arbitrary exereise. That government ean seareely be deemed to be free where the rights of property are left solely dependent upon the will of a legislative body without any restraint. The fundamental maxims of a free government seem to require that the rights of personal liberty and of private property should be held saered. At least no court of justiee in this country would be warranted in assuming that the power to violate and disregard them, lurked under any grant of legislative authority or ought to be implied from any general expressions of the will of the people".
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