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stitution unquestionably conferring this power upon the Federal judiciary.

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Trevett v. Weeden was heard and adjudicated by the Superior Court of Judicature of Rhode Island at Newport, September 25, 26, 1786. According to Judge Cooley this case has the distinction of being the first in which a law was declared unconstitutional and void. The Virginia case did not go to this extreme, and the New York case decided merely that the State Legislature could not be assumed to have intended to place the United States in the position of infringing the terms of a treaty.

Trevett v. Weeden is mentioned by Bancroft in his History of the Constitution of the United States, and also by McMaster.2 In May, 1786, the General Assembly of Rhode Island by law sanctioned the emission of certain paper money, and in June, 1786, provided for the imposition of penalties upon any person who should refuse to receive the authorized money at its face value in exchange for goods on sale. An act passed at a special session, August, 1786, declared that trial of offenders should take place "without any jury," by a majority of the judges present, according to the laws of the land, and that there should be no appeal from the judgment of the Court. The main issue in this case was whether the legislature could abolish trial by jury, which was guaranteed by the common law and the constitution of Rhode Island. The senior counsel for the defence was General James M. Varnum, member Vi., 169, 170.

2 I., 337–339.



of the Federal Congress from Rhode Island, whose argument was subsequently published. “It is of the essence of Varnum's argument that there was a continuity in the constitution of Rhode Island from the foundation thereof in the reign of Charles II. down to the then year 1786," and although the colonial charter of Rhode Island lost all vigor at the Revolution as an act of the late sovereign, it continued in vigor as a part of the unwritten constitution of the new State. The powers of the legislature were created and limited by this charter, which had been granted by the King upon the petition of the people. The people of the new State might have annulled it and substituted in its place a written instrument. They had not done so, however, but continued it in existence.

If we have not a constitution, by what authority doth our General Assembly convene to make laws and levy taxes? . . . They make laws and levy taxes, and their constituents obey those laws and pay those taxes. Consequently they meet, deliberate, and enact, in virtue of a constitution, which, if they attempt to destroy, or in any manner infringe, they violate the trust reposed in them, and so their acts are not to be considered as laws, or binding upon the people.

It is interesting to note that Varnum cites the view of the publicist Vattel, that the legislature of any State under a constitution cannot alter the fundamental law without having in express terms the power to change the same as part of its commission. As Vattel had said, “legislators derive their power from the consti

tution; how, then, can they change it, without destroying the foundation of their authority?" Varnum then maintained that it was a judicial question whether the legislature had violated the constitution or not. The legislature has

the uncontrolled power of making laws not repugnant to the constitution. The judiciary have the sole power of judging those laws, and are bound to execute them; but cannot admit any act of the legislative as law, which is against the constitution.

The judgment of the Court, to quote its technical phraseology, was that “the information was not cognizable before them.” The judges did not in so many terms pronounce the statute unconstitutional, but they plainly rejected and repealed the challenged statute. The bar, the legislature, the public, understood that the Court by its judgment meant that the statute was, as the defendant's plea had asserted, “unconstitutional and so void.”

As Professor Thayer states,' the consequences of the decision were immediate. The shops and stores were generally opened, business assumed a cheerful aspect, public confidence was restored, and industry revived. But the legislature resented the defiance of the courts. It passed a resolution condemning the decision. It required the judges to come before it at once and give their reasons for adjudging an act of the General Assembly unconstitutional, and so void. Of

* Cases on Constitutional Law, vol. i., 75.

the five magistrates, three obeyed, the two others being unable to do so by reason of illness. These three were directed to appear at a later session, which they did. In the presence of a tribunal which threatened them with removal, the judges did not cower; they told the legislature that the statute was unconstitutional, had not the force of a law, and could not be executed, and that they were not amenable to the legislature for the reasons for their judgment. The Assembly, after discussion, voted that it was dissatisfied with the reasons given by the judges for their judgment in the case, and a motion was made and seconded for dismissing the judges from their office. This is an interesting illustration of what might be expected were the principle of judicial recall to be adopted. Fortunately for the reputation of the State, the resolution was not carried. Although the legislature permitted the judges to continue during their terms, it refused reappointment to all of the number save one, and in making new appointments was careful to see that the new incumbents made no such pretensions for the judiciary.

Shortly after this remarkable episode in Rhode Island there arose in North Carolina a case which evoked interest all over the commonwealth, echoes of which were heard at the Philadelphia Convention in 1787. This was Den d. Bayard and wife v. Singleton, decided by the Court of Conference of North Carolina in May, 1787.' This case arose under a written constitution. In this respect Coxe distinguishes it from the case of Trevett v. Weeden, which, rightly or wrongly, he considers as having arisen under an unwritten constitution. The fundamental issue in Bayard v. Singleton, as in the Rhode Island case, was whether a legislature could abolish the common-law right of trial by jury.

11 Martin, N. C., 42.

The leading counsel for the plaintiff was James Iredell, who afterwards became an associate justice of the Supreme Court of the United States. William R. Davie, afterwards a delegate to the Philadelphia Convention, and, later, Governor of North Carolina, was associated with Iredell. Iredell's interest in the subject-matter of the litigation antedated his connection with the cause. Convinced that the legislature had no power to impair the right of trial by jury and that the courts were clothed with full authority to declare such legislation void, he prepared a letter to the public which was printed at Newbern August 17, 1786. This, it is safe to say, is the ablest and most complete exposition of the power of the judiciary over unconstitutional legislation which had appeared in the whole literature on the subject."


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Among other things, Iredell's letter said: “The power of the Assembly is limited and defined by the constitution. It is a creature of the constitution. ... The people have chosen to be governed under such and such principles. They have not chosen to be governed, or promised to submit upon any other; and the Assembly have no more right to obedience on other terms, than any different power on earth has a right to govern us; for we have as much agreed to be governed by the Turkish Divan as by our own General Assembly, otherwise than on the express terms prescribed. ... The great argument is, that though the Assembly have not a right to violate the constitution, yet if they in fact do so, the only remedy is, either by a humble petition that the law may be repealed, or a universal resistance of the people. But that in the meantime, their act, whatever it is, is to be obeyed as a law; for the judicial power is not to presume to question the power of an act of Assembly.

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