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.
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."
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."
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.
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."
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
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. In 1663,
after receiving the Royal Charter, the General Assembly
enacted legislation that guaranteed to freemen lawful
judgment by his peers.”
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
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
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
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.”
second major argument was that “...without a system of
laws defining and protecting the rights of the people, there
can be no fixed principles or rules of