ited discretion claimed for the judiciary. Such a decision on one part of Blackstone's rule confirms what the writer has observed above on the whole rule as the law of the opinion in cases of conflict between statutes and the constitution. On the whole matter of the case of Rutgers v. Waddington, it is, therefore, correct to say that according to the law of the opinion, no court could decide a questioned statute unconstitutional and hold it therefore void.

Before dismissing the consideration of Rutgers v. Waddington, an additional observation is necessary for further reference.

The opinion of the court is the means of now introducing the head of the nonobstante clause, which will play a most important part in the exposition of the law of the subject of this Essay.

The opinion points out that, if the statute had contained a clause of nonobstante to the law of nations, there would have been an express repeal of any part of that law contrariant to the statute. The absence of such a clause or of other express language of like import excluded the possibility of such a repeal, because the notion of any repealing by implication must be rejected. Contrariety between the statute and the law of nations could not be presumed. It must be expressed. This exposition of the law of the nonobstante clause was most opportune. It fell on the fruitful soil of 1784 and before long the seed produced a harvest. In the spring of 1787, the United States in Congress assembled moved federally the several states to enact identical laws with clauses of nonobstante to all their respective statutes and parts of statutes containing anything contrariant to the treaty of peace. Not only the year 1787, but the years 1788, and 1789, were memorable in the long American history of the legal institution known as the nonobstante clause. That history begins with the bull of Alexander VI., in 1499, and is not yet ended, as will hereinafter fully

appear.

CHAPTER XXV.

Of the law of Rhode Island and of the case of Trevett v. Weeden.

The next subject for consideration will be the historical case of Trevett v. Weeden, heard and adjudicated by the Superior Court of Judicature of Rhode Island, at Newport, on September 25th and 26th, 1786.

Judge Cooley observes that this was the first American case in which a law "was declared unconstitutional and "void."*

The general assembly of Rhode Island, by an act of May session, 1786, provided for the emission of certain paper money. By an act of June session, 1786, the same body enacted that any person who should refuse to receive the said paper money in exchange for goods on sale at the value of the face of the bills, or who should make two prices for such goods, one in paper and the other in silver, etc., should upon conviction thereof be fined one hundred pounds for the first offence, and for the second be fined the same amount and become incapable of electing, or being elected, to any office of honour.

By act of special August session, 1786, the assembly provided for offences against the previous act being tried by special courts, each of which should proceed in the following way: "that the said court, when so convened, shall "proceed to the trial of said offender; and they are hereby

* Constitutional Limitations, 5th Ed., page 194 footnote.

authorized so to do, without any jury, by a majority of "the judges present, according to the laws of the land, and "to make adjudication and determination; and that three "members be sufficient to constitute a court."* It was further enacted that there should be no appeal from the judgment of the court, etc.

The cause of Trevett v. Weeden was a qui tam action "brought by John Trevett, informer, against John Weeden, "butcher, for refusing to take, of the said John Trevett, for "meat, the bills of credit emitted by an act of the general assembly of said state."+

66

To the plaintiff's complaint the defendant made answer by the following plea :

"The said John Weeden comes into court and prays the "honourable court here will not take cognizance of the com"plaint of the said John Trevett; because he saith, that it "appears by the act of the general assembly, whereon said "information is founded, that the said act hath expired, "and hath no force: Also, for that by the said act the "matters of complaint are made triable before special "courts, incontrollable by the supreme judiciary court of "the state: And also, for that the court is not authorized "or empowered by said act, to impanel a jury to try the "facts charged in the information, and so the same is un"constitutional and void: All which the said Weeden is "ready to verify. Wherefore he prays judgment of the "court here, that they will not take further cognizance of "the said information." +

What the counsel for the prosecution said is not extant, but it must have consisted only of brief and ordinary observations. General James M. Varnum, member of the federal Congress from Rhode Island, was the senior counsel for the defence. Some time after the hearing of the cause, he printed his argument in a pamphlet published at Providence by John Carter, in 1787.

* Varnum, p. 59.

† Providence Gazette, October 7th, 1786; American Museum, vol. 5, p. 36. Gazette as cited; Museum as cited; Varnum, p. 2,

Varnum was the leading spirit of the cause. markable argument he sought to show :*

In his re

(1) That the act, upon which the information was founded, had expired;

(2) That, by the act, special jurisdictions were created, uncontrollable by the supreme or superior court of judicature;†

(3) That, by the act, the court was not authorized or empowered to impanel a jury to try the facts contained in the information;

(4) That the trial by jury was a fundamental constitutional right, was a part of the legal constitution of Rhode Island, had always been claimed as such, had always been ratified as such, and had always been held most dear and sacred;$

(5) That the legislature derived all its authority from the constitution, that it had no power of making laws but in subordination to the constitution and that therefore it could not infringe or violate the constitution, as was done by enacting an act depriving citizens of the constitutional right of trial by jury;

(6) "That therefore the act is unconstitutional and void;¶ (7) "That this court has power to judge and determine "what acts of the general assembly are agreeable to the "constitution:**

(8) "That this court is under the solemn obligations to "execute the laws of the land, and therefore can not, will "not consider this act as a law of the land."++

Before going further it may be remarked that the act of the general assembly in the quotations from the defendant's plea abovequoted is said to be "unconstitutional and void." In the quotation in Varnum, page 3, line 3, the language is identical. That language, however, is not accurate. The

precise words were that the act was "unconstitutional and "so void." This is proved by Varnum, page 37 line 10 from the bottom and page 38, line 2 from the bottom. Judge Howell's observations on the latter page are decisive on this important point.

The first of Varnum's contentions was that the act in question had expired. The defence did not, however, place their principal reliance upon this objection, which appears to have hung upon the unskillfulness of the penman of the act. As Varnum feared the injustice of the legislature to the judges, in the event of the court's doing justice to his client, it might become a useful shield for the latter. It was probably thought so by the court, judging from the speech defending its action and judgment which was made by Judge Howell before the legislature. Every thing said both by Varnum and the judges in court must be read in the light of their common expectation that the legislature would proceed in some hostile way against the latter, if they refused to obey the act.

The argument upon the second point, viz., that, by the act, special jurisdictions were created uncontrollable by the supreme court of judicature, does not go to the question whether or not the act was unconstitutional and so void. It was, however, one of much moment in moving the court to consider whether the act was so or not on other points.

Proof of this is found in paragraph 2 page 10, which holds that at most the Supreme Court could, under the act, correct only the errors of a special court composed of three or more of its own members, but could not correct the error of any of the five special courts composed of members of the courts of Common Pleas.

The next head of Varnum's argument was an inquiry whether the legislature of the state "can deprive the citi"zens of their constitutional right, the trial by jury."

It must here be recalled by the reader that the constitution of Rhode Island was, in 1786, an unwritten constitution ascertained from history, not from the inspection of a written fundamental law denominated a constitution.*

* Cf. Luther v. Borden, Howard, page 35.