USA > Rhode Island > Providence County > Providence > State of Rhode Island and Providence Plantations at the end of the century : a history, Volume 3 > Part 14
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The knowledge both of the history of the judiciary and of eon-
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THE STRUGGLE FOR JUDICIAL SUPREMACY.
stitutional law displayed in this speech, as well as the clearness and conclusiveness of the argument, settled finally and forever this much mooted question.
In the early days of the Colony the sessions of the courts were held at an hour that would hardly now be acceptable to either bench or bar. One of the rules for the regulation of the judiciary contained in the code of 1647 provides that the court shall open daily when in session at eight o'clock in the morning "at the farthest". Whether they accepted the spirit of this rule and held their sessions at an earlier hour than that stated we do not know, but it is easily presumable that they may have done so.
Another of the rules contained in the code shows a remarkable appreciation of the duty of the court toward litigants, and is as true to-day as ever. This rule provides that the court in charging the jury "shall mind the inquest of the most material passages and arguments that are brought by one and other for the case and against it, without alteration or leaning to one party or another, which is too commonly seen''.
In 1729 the Assembly passed an act providing that whereas the sitting of lawyers in the Assembly on the hearing of appeals from the General Court of Trials was found to be of ill consequence, that there- after no practitioner of the law should be chosen a deputy from any town in the Colony during his practicing as such.
In 1878 the right which parties to civil suits, commenced in the Supreme Court, had to a second trial, as of course, if defeated in the first, was abolished. And as two trials could still be had in suits brought and tried in the Common Pleas, if an appeal to the Supreme Court were still allowed, later the appeal was limited to the defendant and allowed to him only from judgments submitted to by him on the first or second day of the term to which suit was brought.
So far as concerns the salaries which Rhode Island, both as a Colony and State, has paid her judiciary, although they have been frequently cited as an evidence of the parsimony of the people towards a body that in the highest degree is representative of the dignity of the State, still it should be considered that until within the last three- quarters of a century Rhode Island was largely a farming State; that for many years it was extremely poor; that the litigation was far different in its nature from that which the court is now called to adju- dicate upon, and considering these facts and comparing the judicial compensation with that paid in other colonies similarly situated, it will be seen that Rhode Island, while never liberal, was still not unduly parsimonious. It is further to be remembered that the men who sat upon the bench of this State, until the first quarter of the last century, were not men skilled or learned in the law. For many years, as has
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS.
been shown, they were the executive officers of the State; for many years thereafter they were men drawn from the same walks of life as their fellow men ; men who relied upon common sense and their knowl- edge of the facts of the cases presented before them rather than upon their knowledge of the common law. In the beginning and for many years the court was paid partially through a system of taxed costs and fees. In addition a daily rate of three and four shillings was added. The difference in the value of this sum in the early years of the Colony compared with its present value must be taken into consideration. What period of time was covered by this amount is not clear, the reeords failing to show any express repeal until the year 1778. It must be remembered, however, that the judicial officers were as well the executive, and in the latter characters received an annual salary amounting, in 1722, to thirty pounds for the deputy governor and ten pounds for each assistant. It is undoubtedly true that their various duties being so elosely united that the salary paid was intended to eover all services rendered. In 1778 the per diem was made thirty-six shillings, and in 1779 it was further inereased to three pounds. In 1780 this amount was changed to three dollars for the chief and two dollars and a half for each associate justice. In 1783 the amount was again elianged to an annual salary of thirty pounds for the chief and twenty-four pounds for each associate justice. In 1786 the entire system of salaries was abolished, the judges having to depend upon the generosity of the Assembly for their compensation. In 1793 a per diem of fifteen shillings was allowed to the chief justice and twelve shillings to eaeli associate. In 1798 the salary of the chief justice was made five hundred dollars and that of the associates three hundred and fifty dollars each. In 1822 the salaries were reduced, that of the chief justiee to the sum of two hundred and fifty dollars and the associates' salaries to two hundred dollars each. In 1827 the number of judges was reduced to three and their salaries raised to six hundred and fifty dollars for the chief justice and five hundred and fifty dollars for the associates. It is hardly eoneeivable that men could have held these positions and at the same time relinquished, in the ease of members of the bar, elevated to the benel, their private praetiee.
In the year 1848 Richard Ward Greene, one of the leading practi- tioners at the bar, was elected chief justice, and the salary was raised to the sum of nine hundred dollars. In accepting this offiee Judge Greene relinquished a private praetiee worth some eight thousand dollars a year, a very large praetiee at that time. Soon after his appointment it beeame known that he intended to retain his private practice in the Cireuit Court of the United States for this district. At this time the Circuit Court was the forum where the most important litigation of the State was brought, owing to the character of the
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THE STRUGGLE FOR JUDICIAL SUPREMACY.
judges who had successively held the court, and the advantage of argu- ing nice questions of law before them rather than in the State Court. When Judge Greene learned that his proposed course would not be satisfactory to the bar or to the people, he gave up his private practice and for several years devoted himself to the discharge of his duties as chief justice.
After the retirement of Judge Greene, in 1854, the salaries were once more changed to sixteen hundred dollars for the chief justice and fifteen hundred dollars for each associate, all fees which had previously been paid to the court being abolished. In 1856 the salary of the chief justice was increased to the sum of twenty-five hundred dollars, and in the following year those of the associate justices were also increased to eighteen hundred dollars each. In 1866 Judge Bradley was elected chief justice with the salary of thirty-five hundred dollars, but upon his resignation two years later it was reduced to three thousand dollars, and the salaries of the associates made twenty-five hundred dollars. In 1875 the salaries were once more increased to forty-five hundred dollars for the chief and to four thousand dollars for the associates. At the present time the salary of the chief justice is fifty- five hundred dollars and those of the associates five thousand dollars. An allowance is also made for the traveling expenses of the court. Furthermore, any justice may, after a continuous service of twenty- five years upon the bench, retire upon full salary, the same privilege being accorded a justice who, while in actual service, arrives at the age of seventy years, provided he has served upon the bench continuously for at least ten years.
One of the curious things noted in the early practice before the courts to those who are now accustomed to the nice differentiation between questions of law, which are for the court, and questions of fact, which are for the jury, is the fact that until within the time of constitutional government in this State, strictly speaking, the juries were judges of both law and fact. Counsel took their authorities before the jury and argued questions of law, as one would now present the points of law involved in the case before the court on appeal. In the code of 1647, as has been noticed on a preceding page, the court were ordered to charge the jury in the law. This practice seems early, however, to have ceased to be the rule in this Colony. Gradually the jury usurped the functions of the court, until they at last united almost all the powers of the court with their own powers as judges of the facts. It is true that for many years the men who held the position of judges probably would have been unable to charge the jury as to the law on any particular point, but yet at intervals men who were skilled jurists sat upon the bench of the Colony and State. And yet these men did not depart from the custom which had become so established as almost
9-3
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS.
to have the force of law. It is stated when Judge Story introduced the practice into the Circuit Court not only of instructing the jury in the law, but also of minutely summing up and commenting on the testimony, pointing out its particular applications, the old lawyers resented it as a presumptuous innovation. The court, however, aside from this, was of much usc. It cannot be said because they left to the jury to decide questions of law, which they should have passed upon, that they were figure heads at the trials of causes. They decided upon all questions of evidence, and naturally the evidence which they ad- mitted was that upon which the jury passed. Therefore, they were the real arbiters of the case, ruling in or ruling out the evidence offered upon either side. Again, if the case came up on demurrer, thus raising a question of law as to whether a case was prima facie made out on the pleadings, this was for the court to decide. Again, special verdicts in those days were common here as in England. If a jury found the law harder for them than they could solve, they re- turned a special verdict instead of a general one, either finding the facts to be a certain way and leaving the judgment to be entered on those facts so found to the court, according to the law bearing upon such facts, or they found a verdict in the alternative, for one party if the court should decide the question of law in his favor, for the other side, if in his favor. Where the jury returned a general verdict in a case involving intricate and nice questions of law, the real danger of such a practice became more evident. The custom of the court to grant new trials on the ground that verdicts were against the law or the evidence was infrequent. They would not disturb a verdict ren- dered by a body that were constituted judges both of law and fact. A party seeking relief was afforded more protection by the Assembly frequently than he could obtain from the court. The trouble was that the court either failed to understand or refused to exercise their un- doubted power to set aside verdicts, rendered by a jury, that were against the law or the evidence. The power was as old as the common law jurisdiction of the courts, but unfortunately it had become a tradi- tion of the State, fixed and immovable, to leave all questions in a case to the decision of the jury. In 1827 Judge Eddy, who was a skilled attorney, was elected chief justice, and the same year an act was passed making it the duty of the court to instruct the jury in the law applicable to each of the cases tried before it.
In 1844 the court were further authorized "to sum up the evidence in each cause for the instruction of the jury, whenever they shall deem it advisable so to do".
At the present time the facts that a jury are to render a verdict upon the evidence presented to them and upon the law as stated to them by the court are better understood, as well as the fact that a
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verdict rendered by a jury contrary to the law delivered to them, and against the facts presented in evidence, is not a verdict within the meaning of that term. The courts of the present day show no hesi- tancy in setting aside verdicts of a jury as against either the law or the evidence. As a result, trial courts show greater care in charging juries carefully as to the law, even if the latter show little improve- ment in judging upon that law or the facts.
The present District Courts occupy the position of the old Town Courts, although they are in no sense their successors. They resemble one another in being local courts, but their jurisdiction is quite dis- tinct. They are rather a result of the development of the old courts of justices of the peace and justice courts. As has been shown in a foriner portion of this article, the Town Courts represented the spirit of local independence; the desire of the towns to be judged by their own magistrates. They were the opposite of a centralized judiciary.
The following is a copy of the proceedings of a Court of Trials held in Providence in 1648, showing the early proceedings. It will be noted that it is within the period when the system of arbitrators, elsewhere referred to, was in force :
"Court of Tryalls 4th, 10mth 1648
"Adonijah Morrice : contra Edward Manton for breach of covenant.
"Adonijah Morrice ingaged his 12 score Acres of Land that is in providence to maintaine the shuite depending
"Adonijah Morrice, his Arbitrators, Gregory Dexter and Hugh Bewitte
"Whereas Ed: Manton not appearing the Court by vertue of Towne Order did choose for him, his arbitrators Jo Throckmorton & Math : Waller
"Motion was made by the plaintiue that Jo Hazell & Jo Smith might be his pleaders. Granted
"The plaintiues declaration, filed with the Relaton of Mr. Jo Browne and the coppy of Sea-Councke Order
"The Testamonye of Wm Harris :
"That the said Wm Harris made the Covenante betweene Robert Morrice deceased and the defendant and that vnto his vnderstanding that said Robert Morrice knewe how the nature and Condition of the said defendants house, lands, rights &c lay and vpon those tearmes & Conditions bought the said purchase, grounded upon Plymouths Order
"That the said Edward Manton defendant gaue vnto the said Robert Morrice possession of the said purchasse, that is to say, the defendant brought the said Robert Morrice in his presence vpon the ground where his house stood and delivered him full possession thereof after the manner as Mr. Winslowe delivered possession
vnto the Jnhabitants of Sea Counke that is, a part for the whole which was accepted of by Robert Morrice
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS.
"The Arbitrators Verdicte
"The defendant not guiltye
"The plaintiues bill of Charge
"Jntering the Action 0£
4s
"Serving the Warrant 0£ 4s
"filing declaration & Testimony
1£
0
"Serjants Adtendance
1£
0
"For Arbitrators
4£
0
6€
8s"
The following is an example of an early writ commencing an action in a Town Court :
"Providenee, the 9th of the 9th m 52
"These are to give order to you Thomas Wallen Town-Serjeant. (Jn the name of the State of England) to arrest the body of John Smith Merehant Jn an Action of the Case in point of Detainor of severall Anehors or quantityes of liquors, to the valew of forty pounds : and to keep him in safe Custody or under sufficient bayle to answer the said Action at our Town Court held the 1st second day of the 10th month next, weh entred against him by William Almy of Road Jsland hereof ye are not to fayle
"Gre: Dexter Town-Clerke".
The writ differs in but slight respects from that of the present day. It is interesting to follow the travel of this ease, selected at ran- dom, and to see with what great similarity it pursues the course that would be followed to-day in like circumstances. After service of the writ, surety for costs of prosecuting the suit is given. The record states :
"Providence the 9th of the 9th 52
"An Action of the Case in point of detayner entred against John Smith Merehant by William Almy of Portsmouth to the valew of 40 pounds. Hugh Bewet & Jo Green engaged to see the suit () ro () ecuted or pay the /Charges/".
Next in order comes the declaration :
"Providence the 10th of the 9th m 52
"The Declaration of William Almy of Road-Jsland Plant, against John Smith of Warwicke /merchant/ Defendant in an action of the Case now pending in this Court of Providence :
"Wherein the said William Almy Deelarcth that the said John Smith together with his Copartner William ffield doth unlawfully detaine & keep from the said William Almy & his assignes the quantity of five Ancors and a half of Liquors to the losse and damage of the
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THE STRUGGLE FOR JUDICIAL SUPREMACY.
said William Almy the sume of forty pounds whereupon the said Wil- liam Almy is constrained to bring his action & seek reliefe by due course of law.
"By Hugh Bewet Attoarr in the Case".
All of this is very much what would be done were an action of detinue to be brought to-day in the proper court of the State.
How anxious the inhabitants were to preserve their local courts is shown by the directions given to the commissioners from Providence to represent them at the General Court of the Colony to be held at Portsmouth in 1647. The third point of their instructions was: "We desire to have full power and authority to transact all our home affairs, to try all manner of causes or cases and to execute all manner of executions entirely within ourselves excepting such cases and execu- tions as the colony shall be pleased to refer to general trials and execu- tions", etc.
The authority at first committed to the Town Courts was broad and the jurisdiction large, but it was gradually limited and much of the jurisdiction in minor matters was conferred upon justices of the peace. The jurisdiction of the justices was of two kinds: First, a limited jurisdiction over certain cases, and, second a jurisdiction to bind over to courts of superior jurisdiction. This jurisdiction in the manner described has remained to this day as the jurisdiction of the present District Courts. From the sentence of justices an appeal was given to the higher court sitting with a jury. In the beginning two justices were generally required for a quorum. In civil matters they first received jurisdiction in 1690, two or more justices being then em- powered to try actions for debt or trespass, and very shortly after this jurisdiction was extended to cover personal action generally (not in- volving the title to real estate) to the amount of forty shillings, subject to appeal to the higher courts. In 1743 the amount was changed to five pounds, and in 1753 to ten pounds, and then in 1798 to the sum of twenty dollars. In the year 1763 one or more justices was made a quorum to try actions for not more than forty shillings; in 1784 for not more than six pounds silver, and in 1798 for not exceeding twenty dollars.
In the year 1844 every justice of the peace was given jurisdiction over all suits for twenty dollars or under, the right of appeal from his judgment being preserved. Further authority was conferred upon such justices over offenses punishable by fine of not more than twenty dollars or by imprisonment for not exceeding three months. In 1857 the jurisdictional amount was increased to the sum of fifty dollars. The manner of appointment of these justices of the peace was in two ways. They were clected both by the towns and by the General Assembly. Many are the curious and laughable stories related of these early justices and of their courts; tales not only of two centuries
134 STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS.
ago, but of days that can yet be called modern. They were as a rule chosen from among the citizens of the towns who had aequircd some little local reputation. Their knowledge of law was necessarily small. Indeed, in most cases it consisted merely of what they had absorbed from years of patient listening to the troubles of litigants and praeti- tioners before their courts. It was a common praetiee to try out the latent abilities of youthful aspirants for membership at the bar by sending them to practice before the justice courts, and it is probable that some of the astonishing principles of law promulgated by their tribunals are to be laid at the doors of these young disciples of Blackstone.
It is remarkable that such a system should have lasted so long, and been as satisfactory as it must have been to have retained its place for so many years.
At last in the cities and larger towns the cry for reform could no longer be unheeded. In 1845 a Court of Magistrates was established in the city of Providence. It was to consist of seven magistrates, to be annually appointed by the City Council out of the justiees of the peace for the eity, appointed by the General Assembly or the eity, and was given exclusive jurisdiction over such matters both eivil and criminal as had been or might be given by law to justices of the peace of other towns. Power was given to these justices to choose their own president and elerk, and four of them were to constitute a quorum. In May, 1846, their number was reduced to three, and two were to constitute a quorum. In the following years similar courts were estab- lished for Newport, Woonsocket and Pawtucket. The justiees were then chosen by the Assembly instead of by the eities, and they also were paid by the State. This system proved a great improvement on the old plan, and the business of the courts was transacted not only more expeditiously, more cheaply, but much more to the satisfaction of suitors.
In 1867 the system was still further extended by authorizing the Town Councils of the towns where Courts of Magistrates were not established, to appoint from the justiees of the peace of their towns, trial justices to hold justice courts exclusively therein, and their eivil jurisdiction was increased to one hundred dollars.
In 1872 it was made obligatory upon the towns to appoint such trial justices, and it was further provided that their tenure of office should be extended to the term of three years. This law remained in force until 1886, when the present system of Distriet Courts was estab- lished.
The State was divided into twelve judicial distriets, the larger cities constituting districts in themselves, while the towns were grouped together to form other distriets. These eourts are held by a justice eliosen by the General Assembly for the term of three years. Most of
.
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THE STRUGGLE FOR JUDICIAL SUPREMACY.
the courts have a clerk as well, similarly chosen, but in a few instances the justice acts as clerk. These clerks have power in the absence of the justice to hold court in his stead. In the city of Providence the clerk acts as well as associate justice and hears such cases as are re- ferred to him by the justice. The jurisdiction of these courts in criminal matters is practically that of the old justice courts. In civil matters they have original jurisdiction in all cases where the debt or damage does not exceed the sum of three hundred dollars, and in all cases of trespass and ejectment for tenements let or held at will or sufferance. They have no jurisdiction where title of the close is in dispute. This system has proved most admirable and is a monument to the wisdom of those who established it.
A few words should be said in regard to the Courts of Probate. Their jurisdiction is most important. They come more closely in many ways than any other court to the citizen, and yet they work so quietly and unobtrusively that their proceedings cause little comment and their jurisdiction is little understood by the average person. Holding as they do jurisdiction over all cases of intestacy ; admitting wills; appointing guardians of person and estate; passing upon the largest as well as the smallest estates and interests, they perform a work that for importance is not exceeded by the highest court of the State. By the code of 1647 the probate of wills was given to the head officer of each town. There it has remained, with a very few excep- tions to this day, exercised by the Town Councils. One of the most curious features of the early system was the act that made it manda- tory upon every one having property, to dispose of it by will. In- testacy was abhorred. If a person having property failed to so dis- pose of it by will, it was made the duty of the head officer of the town, together with the Town Council, to make a will for him, providing for an "equal and just distribution of his estate among those to whom it
does belong". This power was exercised freely. The authorized magistrates made the will to suit their own sense of equity, and they gave away the property as they saw fit.
Examples of such ex post facto wills are not wanting in the early records. Under date of 1676 the following appears in the records of Providence :
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