The Case of Trevett v. Weeden: 1786 - 2004, 0617 RIBJ, RIBJ, 65 RI Bar J., No. 6, Pg. 5


The Case of Trevett v. Weeden: 1786 - 2004

No. Vol. 65 No. 6 Pg. 5

Rhode Island Bar Journal

June, 2017

May, 2017

In September 1786, John Trevett tried to buy meat in John Weeden's butcher shop in Newport. He tendered payment in paper money, but Weeden refused to accept paper money because it was worthless. Instead he demanded hard cash - gold or silver. Trevett then brought a complaint against Weeden under a recent Rhode Island statute making it a crime to refuse paper money. The statute also required trial within three days in a special court, denied the accused a trial by jury and prohibited an appeal from any sentence.[1]

Weeden's attorney was James Mitchell Varnum. Educated at both Brown and Harvard Universities, Varnum had served as a general in the Continental Army directly under George Washington. Later he represented Rhode Island in the Continental Congress. He was a skilled lawyer and a superb orator. His successful defense of Weeden attacked the statute as unlawful and, thus, void. He raised questions of legislative and judicial power that were not definitively settled in Rhode Island until 2004.

Trevett had filed his complaint during the regular term of the court, thus obviating the necessity of convening a special court as provided in the statute. Instead, it was heard by a panel of five judges. Varnum opened his oral argument by stating that he was appearing not so much as a lawyer, but as a "citizen, deeply interested in the constitutional laws of a free, sovereign, independent state." He thanked the judges for sitting in their "supreme judicial capacity" rather than "the new-fangled jurisdiction erected by the General Assembly" which removed from him "the painful necessity of considering your Honours as individually composing so dangerous a tribunal."[2]

The core of his defense of Weeden was that the criminal statute "is contrary to the laws of the State, and therefore...[is] a mere nullity, ab initio." To support this proposition, he would discuss "with decent firmness" the nature, limits and extent of legislative power and thus deduce that "this act ... can only be considered as an act of usurpation." He tactfully gave the legislators the benefit of any doubt by paying homage to their integrity, virtue and good intentions, even though the statute was a "hasty resolution, inconsiderately adopted, and subject to legal reprehension."[3]

He told the court that some legislators "were apprehensive" that jurors would not convict a person charged with refusing to accept paper money. Thus, he said, they thought the best way to get convictions would be to eliminate trial by jury for that offense.[4] He then raised the more fundamental question of legislative control over the judiciary and judicial independence itself. At that time, the General Assembly elected judges annually.

He declared, "They [the legislators] aimed therefore at a summary process, flattering themselves, that the Judges being elected by the Legislators would blindly submit to their sovereign will and pleasure."[5] However, he assured the Court, "...happy for the State, Courts in general are not intimidated by the dread, nor influenced by the debauch of power."[6] He flattered the judges that Rhode Island had an independent judiciary in fact, if not by design. Post-trial events would illustrate the legislature's great displeasure with the eventual ruling of the judges.

Varnum then turned to the three main arguments of his defense of Weeden: First, trial by jury is a fundamental right of all citizens. It is part of "our legal constitution." Second, the legislature cannot deprive the citizens of this right. Third, judges should determine whether the laws of the legislature are consistent with or are repugnant to the constitution. He called on the judges to "so determine."[7]

He dealt first with the constitutional issue. In 1786, Rhode Island, unlike many other states, had no written constitution. The Royal Charter of 1663 signed by King Charles II was the only written basis for the state government. It guaranteed to all inhabitants “all liberties and immunities of free and natural subjects ... as if they ... were born within the realm of England. In this way the Magna Carta “and other fundamental laws of England were confirmed to the people of Rhode Island.[8] In 1663, after receiving the Royal Charter, the General Assembly enacted legislation that guaranteed to freemen lawful judgment by his peers.”[9] That is, trial by jury.

Varnum argued that the act of 1663 did not create any new rights. It was only “declaratory of the rights of all the people, as derived through the Charter from their progenitors, time out of mind.” The act of 1663 exhibited “the most valuable part of ... [the] political constitution, and formed a sacred stipulation that could never be violated.”[10]

There was little dispute in America at that time that the applicable law was English law, which included trial by jury. (In the 18th century, juries not only decided factual questions as they do today, but they decided legal questions as well.[11])

Varnum continued by asking if the citizens of Rhode Island had ever entrusted their legislators with the power of altering their constitution. Clearly, they had not. He asked why did the people endure “a long, painful and bloody war, but to secure inviolate and to transmit unsullied for posterity, the inestimable privileges they received from their forefathers?”[12] The right to trial by jury was one of those privileges. He drove his point home with, “They who have snatched their liberty from the jaws of the British lion amidst the thunders of contending nations, will they basely surrender it to...a body that is elected annually?”[13]

The fact that Rhode Island, in 1786, did not have a written constitution made a constitutional argument difficult. Varnum admitted as much and then pointed out that the General Assembly convened to make laws and to levy taxes by virtue of another form 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 be considered as laws or binding upon the people.”[14]

Varnum’s second major argument was that “...without a system of laws defining and protecting the rights of the people, there can be no...

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