USA > Rhode Island > Providence County > Providence > State of Rhode Island and Providence Plantations at the end of the century : a history, Volume 3 > Part 17
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and requested the court to receive the papers of the case. The chief justice refused to take the papers. He was of the opinion that their disagreement was owing chiefly to an unaccommodating party spirit which they ought to endeavor to subdue. He ordered them to retire a second time, which they did, and about three or four o'clock the same afternoon returned and informed the clerk that they had signed a verdict. The clerk took the verdict and read it aloud in the follow- ing words: "We find for the defendant his cost". The counsel for the defendant then requested the clerk to enter the verdict according to the two issues joined, and asked the plaintiff's counsel if they had any objection. They were answered that the verdict was expected to be entered according to the intention of the jury. Whereupon several of the jurors declared to the court that they did not intend to find the truth of the defendant's plea in bar to the eight first counts, and that they believed the plaintiff entirely innocent of the facts charged against him in the plea.
The foreman told the court that the whole jury had uniformly ex- pressed the same opinion. While this conversation was passing the defendant's attorney had drawn the form of a verdict to be entered, which was nearly in these words: "We find for the defendant upon the first issue .. We also find for the defendant upon the second issue with cost".
The court ordered the clerk to enter the verdict. The clerk was at a loss to know how to make the entry and applied to the court for their instructions. The chief justice said: "Write the verdict in the common manner. I don't know what else to say". Another con- troversy arose between counsel when the plaintiff's counsel desired the jury to inform the court what they meant to find in their verdict. Upon this the chief justice said : "The juriers ought to be dismissed, because they've been shut up so long and haven't had no refreshment, that they can't stand it any longer. The court can do about the ver- dict, I guess". Several of the jurors did not seem willing that the jury should leave the stand till the verdict was decided. One of them begged the attention of the court and told them that he meant to find for the defendant only on the last eight counts, and offered to give his reasons for signing the verdict in the manner he did. The court was again applied to to decide the form of entering the verdict. The chief justice said : "Write it as you commonly do. I don't know what else to say". The clerk finally entered the verdict in his minute book in the words of the jury, and then asked the jury if that was their verdict, upon which one of them rose and said: "No, it is not my opinion. I meant to find for the defendant only on the last eight counts". He was proceeding further, when two or three other jurors rose to make explanation also. The chief justice, however, stopped them and told them that they were dismissed and must immediately
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retire. The counsel for the plaintiff asked the court if the verdict was at all events to be recorded in its present situation. The chief justice said : "Why, the juricrs has all signed it, and I can't see why 'tisn't a good verdict. I am willing tho', and I suppose the court is, to hear all that can be said upon it. What have ye got to say for yourself, Mr. Burrill ?"
The latter told the court that he objected to the verdict being recorded, as the jury, when solemnly called upon according to the practice and usage of that court, had declared it not to be their verdict, and that it was totally against their intentions. The chief justice interrupted and said: "Speak louder, Mr. Burrill; I'm some deaf and it's like I've not heard all's been said. The court has a mind to do what's right. For matter of that we'll hear you patiently, Mr. Burrill, and Mr. Greene, too. Proceed, Mr. Burrill".
After some argument the court decided that they would hear noth- ing further at that time. The plaintiff's counsel thereupon drew up a remonstrance against the receipt of the verdict, praying that it might be annulled. The court declared that the paper should not at that time be entered on file, but that they would take it and carry it a few days in their pockets and at a convenient time would say whether they would formally receive it. The chief justice said: "The court has no objection to let the paper be. I'll put the paper in my pocket till the court can see about it. We'll hear what the parties have to say before the court's done. Ye ha'nt any objection to that I suppose, ha' ye ?"
The court refused to appoint a particular day for hearing the motion for receiving the paper, but said that they would see about it before the rising of the court. They kept the paper in their possession until the tenth day after the return of the verdict, when the motion was again brought before them, and they consented to hear the arguments upon the subject. The defendant's counsel again repeated their objec- tions to its being received, or the plaintiff being suffered to say any- thing more against the propriety of the verdict. The counsel for the plaintiff said that it had always been the uniform practice and custom of the court not to consider a verdict complete till the jury had solemnly acknowledged it as their verdict, and persisted in it after the court had entered it on their minute book. That such was also the custom in the Supreme Court, where several verdicts were recollected to have been set aside by reason of some of the jurors dissenting to it after the court had entered it on the minute book. That in the present case several of the jurors had declared their dissent to the verdict before they were dismissed from the cause. Here the chief justice interrupted and said: "What do ye say, Mr. Greene? If I under- stand the matter right, the question now before the court is, whether there shall be no more said about the verdict, and whether o' no the
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court shall receive the paper. For my part I wish to do one thing to a time". After this the arguments were confined to the question of receiving the paper. When the opinion of the court was taken the chief justice, after whispering a few minutes with the court, spoke nearly as follows: " "Tis the opinion of the court the paper don't ought to be received in its present form. Ye may though make another motion to the court an' ye will, an' the court will hear ye".
The counsel observed that the four days from the return of the verdict, which the law allowed for filing motions for setting aside ver- dicts, has expired, and the court, they well knew, could not hear another motion upon the subject. They informed the court that they would not trouble their honors with any more motions. Upon this the chief justice said : "The court's quite willing to keep a hearing mo- tions as long as there's anything to say". There was, however, noth- ing further said and the verdict was established and entered on record.
Either in the early days of the Colony as great respect was not held for the magistrates as now, or else the body considered that the power to punish for contempt was too great a power to be given to the court without recourse. for we find an act passed, in 1650, providing that if any person should misbehave either rudely or contemptuously in a court of justice, the judges of the court should commit him to the stocks or pay five shillings (the offender is meant, not the court), the jury present first finding him guilty.
The following act was passed in 1656, evidently intended to prevent the hasty expressing of opinions by the bench upon actions tried before them : "Forasmuch as it appears to be offensive for a magis- trate to rise off the bench when a cause comes to be pleaded, for that thereby he prejudgeth the case, and forestalls the minds of some more or less of the number in the jury and thereby doth hazard the best and most just cause, it is enacted that if any magistrate shall from hence- forth, in any of our courts, upon the proposing and pleading a cause there before them, rise off the bench without leave of the court, he shall be liable to pay five pounds in case the cause depending be laid a hundred pounds or under, and in case it be laid above a hundred pounds then to pay a ten pound fine".
In 1678 it was voted that certain persons be appointed to receive the votes from each person, and if any brought be brought double, they may open them and so deliver but one into the hat from each man. The delicate way in which illegal and double voting is referred to is amusing.
At the December term of the Court of Quarter Sessions, 1687, an order was made providing a rate of one hundred and sixty pounds for the purpose of building a court house in each of the towns of Newport and Rochester and repairing the prison in Newport and for other purposes, sheep's wool to be taken in payment of the rate at seven
.
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penee half penny a pound, butter made in the spring at four penee half penny a pound, pork at forty-two shillings a barrel, etc.
In 1695 the Assembly, feeling sensible of the want of a prison on the mainland, ordered that such prison be built in Providence for the purpose of seeuring delinquents, the charge to be borne by the town of Providenee.
The following act appears in 1707: "Whereas, the body of a negro man which was a late slave to Mr Thomas Mumford of Kingstown and who had committed the horrid and barbarous murder upon the wife of the said Mumford, about two weeks since, as is justly eoneluded, was found dead upon the shores of Little Compton in the province of the Massachusetts Bay, which said negro, it is believed and judged, after he had committed said murder, threw himself into the sea and drowned himself, by reason he would not be taken alive, and the said negro's body now being brought into the harbor of Newport, it is ordered by this Assembly that his head, legs and arms be eut from his body and hung up in some publie place near the town to publie view and his body to be burnt to ashes, that it may, if it pleases God, be something a terror to others from perpetrating the like barbarity for the future".
One of the most marked peculiarities of the old time, as well as eom- paratively modern procedure in Rhode Island, was the ability with which a new trial of a ease could be obtained. In faet, it came to be regarded almost as a preseriptive right that a litigant, after a verdict against him, should obtain a new trial as a matter of right without urging errors of law or faets. At the session of the Assembly in 1677 permission was given to any party that might be aggrieved by the judgment of the General Court of Trials to have one rehearing at the next eourt. At the session of 1680 provision was made that in all personal aetions where either party should have obtained two judg- ments for him at the General Court of Trials in one action, the other party should have liberty to appeal to the next General Assembly from the last judgment, for relief, with liberty to the Assembly to enter a new judgment as might seem agreeable to law and equity, the parties having permission to give in new evidenee. It will be seen from these two early aets that in the eases mentioned three trials of a ease might be had, as a matter of right.
Upon the establishment of the system of courts consisting of the Courts of Common Pleas, and the Superior or Supreme Court as it was sueeessively ealled, not only two but frequently three jury trials could be obtained. If an action was eommeneed in the Court of Common Pleas, a litigant eould earry the ease by appeal to the Supreme Court, and if the two verdiets were contradictory, a third trial was permitted to deeide the matter. This trial in review was not abolished until as late as 1844. In 1847 the Supreme Court, whose
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jurisdiction had hitherto been, as has been previously shown, almost entirely of an appellate nature, was vested with original jurisdiction concurrently with that of the Court of Common Pleas, of all civil suits for one hundred dollars and upwards. The act by which this juris- diction was conferred provided that the party against whom verdict was rendered should have a second trial, as of course, by moving for it in writing within forty-eight hours and paying the fee fixed for the entry of appeals. The object of this provision was to place actions commenced in the Supreme Court on an equality was those commenced in the Court of Common Pleas, in which latter court, as above stated, a party litigant, after verdict against him, could get a second trial by appeal to the Supreme Court.
The effect of such an act, as can be scen, was to make the first trial simply an attempt to draw the fire of the adversary; the counsel on both sides trying to put in as little of their case as possible and at the same time ascertain what the probable defense to be offered by the other side might be.
As an illustration of the growth of the State since a period about midway between the colonization and the present, is the vote of the Assembly, passed in 1741, directing the secretary to procure a new book of six quires of paper for the records of the Superior Court of Judicature, and a new book of eight quires of paper for recording all public things that shall be required to be registered in the Colony.
In the days when the Assembly made its perigrinations around the counties, it held its sessions wherever it was possible to find accom- modations. In 1742 a vote appears of record ordering that the sum of ten pounds be allowed and paid out of the General Treasury to the executors of John Wicks, being for the General Assembly sitting at his house in Warwick several times and for firewood and attend- ance at said times.
During the days when slavery was a recognized institution of the Colony it sometimes happened that a person was aggrieved cither in person or property by the acts of a slave. Although regarded as property, they were still recognized as possessed of sufficient per- sonality that an action for damages sustained was brought against the offender, rather than his owner. The difficulty that then arose was in relation to the manner in which the execution should be served. In 1743 one Comfort Taylor, a widow, represented to the Assembly that she had recovered judgment against a negro man named Cuff, belong- ing-to Thomas Bordon, of Portsmouth, for two hundred pounds, for a grievous trespass committed against her, and that as the execution will go against his person to be imprisoned, it is not clear that the sheriff can dispose of him, which he ought to have power to do, because said negro is not free but a private property, and therefore prayed that the sheriff might be empowered to sell him, as other
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personal estate taken on execution to satisfy debts, and considering the great abuse she had suffered and the charge that would come out of said negro for prison fees, she desired that the fine might be re- mitted, otherwise she would get nothing. Thereupon the Assembly voted that the sheriff, when he should receive execution against the negro, should be empowered to sell him as other personal estate, and after the fine should be paid into the treasury and other charges be dedueted out of the priee, that the remainder should be appropriated to satisfy the execution.
The court house at East Greenwich was ereeted about the time when lotteries in this State were reaching their height. At the June session,
EAST GREENWICH COURT HOUSE.
1750, Kent county had been established and a system of eourts estab- lished for the same. The aet also provided that a court house, of the dimensions, or near the dimensions, of the court house in Providenee, be built in the town of East Greenwich by a free contribution of the inhabitants of the county of Kent, and that if the same was not so far finished as to be fit to hold eourts in.by the last day of October next, then the aet establishing the courts and county to be null and void. At the February session, 1752, representation was made to the Assembly by a number of gentlemen and others, inhabitants of the county of Kent, that they had ereeted a court house agreeably to the
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foregoing act, but that the house was unfinished within, which rendered it uncomfortable in the winter, in the coldest part of which season one court was held there; that although they had cheerfully contributed toward the building, they found they were unable to complete it, and therefore prayed that a lottery might be granted them as the easiest way to raise money sufficient for finishing the said house. The lottery was accordingly granted.
At this time it was a more serious offense to speak lightly of the General Assembly, or to question their motives, than it apparently is to-day. In 1753 one John Martin was brought before the Assembly for grossly and scandalously abusing them, and it being fully proved that he was guilty of the crime, it was voted that he be committed to and closely confined in the jail in Newport, without the use of pen, ink and paper, and that no person but the sheriff should, without leave of the Assembly, have liberty to speak or to confer with him on any occasion, and there to remain until further orders of the Assem- bly. It may be gathered from the deprivation of pen, ink and paper that these were the weapons which the prisoner had made use of in his attack upon the Assembly. The punishment soon had its effect, for within a day or two there was placed upon record the humble apology of the defendant, and he was dismissed, paying eosts.1
In 1756 one Samuel Thayer was brought before the Assembly, in consequence of a warrant issued against him by the secretary, pur- suant to a vote of the Assembly, and the record reads: "The said Samuel confessing that he had damned this General Assembly, it is therefore ordered that he, the said Samuel Thayer, be forthwith com- mitted to and closely confined in His Majesty's jail at Providence".
Evidently even in 1798 members of the bar were becoming more numerous than the Assembly deemed good for the State, for in that year we find a law was passed imposing a tax upon all practicing attorneys. The attorneys, however, rebelled and for many years refused to pay the tax, and in 1814 the act was repealed.
The court house in Providence county, dedicated in 1877, is the first edifice ever built exclusively for the courts of the State. Forty years ago the court sat in Providence county from sixty to seventy days a year. Now it sits continuously for ten months. At the date referred to the court met in the old state house on Benefit street, when that was not used by the General Assembly. When that body oceupied it the court had a migratory existence, sitting in rooms hired for the occasion and even in the offices of some of the judges. Things even so short a time ago were primitive. Cases were fewer and also less intricate and important. Those were the days when the railroad was as yet unde- veloped compared with its importance as a factor in modern life. It
"This is doubtless the same John Martin referred to on page 137 ante, a part of whose will is there printed.
WILLIAM READ STAPLES,
CHIEF JUSTICE OF THE SUPREME COURT OF RHODE ISLAND 1854-1856. AUTHOR OF THE "ANNALS OF PROVIDENCE."
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was the day when the telephone, the telegraph, electric power, cars moved by motor power, and all of the common facilities of everyday life at the present time were cither unknown or in their infancy. To- day the inventions referred to have added, not only new branches of the law to meet the needs that have arisen, but have added more than a hundredfold to the business brought before the courts. In those days neighborhood quarrels, disputes over boundaries, suits for breaches of contract, with the usual criminal cases, occupied the time of the courts. The law of negligence, now so diversified and filling so large a part in the life of the courts; the law of master and servant; the law of corporations; the great equitable jurisdiction extending its powers over every other department, were little known. As said by Judge Durfee in the address delivered at the dedication of the Provi- dence county court house : "I do not think the change has come from any growing litigiousness. Litigiousness is the vice of a shiftless and vacant comnnmity, craving excitement and therefore grecdy of con- troversy. It is not the vice of a busy community absorbed in its own affairs, and having, to divert its leisure, the appliances of a luxurious city. Rather does the change imply that the community, while becoming more populous, is also becoming more variously developed in its social, civic and business concerns. It is a sign of progress, not deterioration. The State is a humming hive of industry. Its industry is not homogeneous, but of many kinds. Hence, new duties, new interests, new and complex relations, evolving new and complex ques- tions of law and fact. The resources of jurisprudence are taxed to the utmost. New laws are constantly demanded and the General Assembly, as well as the courts, prolongs its sessions. Progress has been said to proceed by the evolution of the more complex out of the less complex. Life as it develops propounds more problems than it solves, and cannot multiply rights without multiplying the wrongs which result out of their infringement".
The question has been repeatedly asked why Rhode Island has so few Reports. The reason is not far to seek. As has been shown, the juries until after the present constitution were judges of both law and fact. There was, therefore, nothing to report. No need of precedents where each case could be decided according to the light which an in- dividual jury might or might not possess. The few early cases found in the first volume of the Reports are merely charges of the court to the jury in the rare cases when charges were made. When the act was passed providing for a reporter of the decisions of the Supreme Court, Charles F. Tillinghast was appointed, but declined to accept. It was then offered to the late Abraham Payne. He called upon Judge Staples to consult about the matter. Judge Staples said to him: "You can take the office if you choose, but we shall make you all the
11-3
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trouble we can. We shall give you no written opinions unless we are compelled to do so. We don't want any reporter or any reports. We mean to decide cases rightly, but we don't want to be hampered by rules, the effect of which would be to defeat justice. We had a petition for a new trial before us in Newport county last term. There was no rule or authority by which we could grant it; but we saw, if we did not grant it, an honest farmer would be cheated out of his farm; and we granted it without giving any reasons for doing so". After this conversation Mr. Payne, in turn, declined the office. It was finally accepted by Joseph K. Angell, a pioneer among writers of legal text books in this country. The Reports were first issued in pamphlet form. The first of these pamphlets appeared in 1847. It contained seventy-one pages and consisted entirely of opinions given long before the date of its publication. The second number soon followed. This also was prepared by Mr. Angell, and was the last prepared by him. He resigned in 1849, and Thomas Durfce was elected his successor. The names of persons who have held the office since can be found upon the title pages of the Reports.
Before closing this review of the judicial history of the State of Rhode Island a few pages should be devoted to the lives and characters of the men who have represented the State upon the bench. The character of a State can be fairly judged by the character of the men who hold the public offices. In looking back over the pages of the history of Rhode Island for the past two hundred and fifty years every citizen can read with pride the names of those who have occupied the positions of judges of the highest court of the Colony and State. During the time that the court was held by the governor and assistants the places were held, of course, by those who were the leaders of the people; the statesmen of the embryo Commonwealth ; among them men who would have been statesmen at any period and in any environment ; men whose breadth of view and broadness of mind laid the lines of the future State on the liberal plan which it has ever followed.
After a distinct judicial system was constituted the list contains the names of such men as Stephen Hopkins, for many years governor as well as chief justice; William Ellery, signer of the Declaration of Independence; Paul Mumford, remembered as the chief justice who presided at the trial of Trevett v. Weeden; David Howell, professor in Brown University, delegate to the Continental Congress, a United States district judge for the district of Rhode Island. There we find Samuel Ward, the great rival of Stephen Hopkins. Among others were James Burrill, the distinguished lawyer and statesman ; Tristam Burges, referred to at length in another portion of this work, and also James Fenner, so many years the governor of the State. In speaking of these old judges, who held the office prior to the new line which commenced with Samuel Eddy, Judge Durfce has probably drawn
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