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There is a great distinction between the authority of the treaty, and its operation and effects.

The first we hold to be sacred and shall never, as far as we have power, suffer it to be violated or questioned.

It is the great charter of America - it has formally and forever released us from foreign domination - it has confirmed our sovereignty and independence; and ascertained our extensive limits.

Our Union, as has been properly observed, is known and legalized in our Constitution, and adopted as a fundamental law in the first Act of our Legislature. The federal compact hath vested Congress with full and exclusive powers to make peace and war. This treaty they have made and ratified, and rendered its obligation perpetual. And we are clearly of opinion, that no State in this Union can alter or abridge, in a single point, the federal articles or the treaty.

But the operation and effects of the treaty, within our own State, are fit subjects of inquiry and decision: according to its spirit and true meaning we must determine our judgment; nor shall any man, by any act of ours, be deprived of the benefits which, on a fair and reasonable construction, he ought to derive from it.

On this occasion, we say with the sage, Fiat justitia ruat cœlum.

The counsel for the defendant, by stating a number of pointed cases, showed clearly, from the nature of things, that the statute must admit of exceptions. Mr. Attorney-General, one of the counsel for the plaintiff, who argued the cause very ably, admitted that many cases may be out of the statute, though the plaintiff's is not of the number.

Thus, then, it seems to be agreed, on both sides, that the provision in the statute, being general, cannot extend to all cases, and must therefore receive a reasonable interpretation according to the intention; and not according to the latitude of expression of the legislature: it follows as a necessary consequence, that the interpretation is the province of the court, and, however difficult the task, that we are bound to perform it.

The authorities which have been cited on the part of the defendant, not only establish this general principle, but bring forward a number of judicial decisions, wherein the courts of justice have exercised that power.

On the other side, the uncontrollable power of the legislature, and the sanctity of its laws, have been earnestly pressed by the counsel for the plaintiff; and a great number of authorities have been quoted to establish an opinion, that the courts of justice in no case ought to exercise a discretion in the construction of a statute.

However contradictory these authorities may appear to superficial observers, they are not only capable of being reconciled, but the result of the whole will appear to be wise, suited to human imperfection and easily explained.

The supremacy of the legislature need not be called into question;

if they think fit positively to enact a law, there is no power which can control them. When the main object of such a law is clearly expressed, and the intention manifest, the judges are not at liberty, although it appears to them to be unreasonable, to reject it; for this were to set the judicial above the legislative, which would be subversive of all government.

But when a law is expressed in general words, and some collateral matter, which happens to arise from those general words, is unreasonable, there the judges are in decency to conclude, that the consequences were not foreseen by the legislature; and therefore they are at liberty to expound the statute by equity, and only quoad hoc to disregard it.

When the judicial make these distinctions, they do not control the legislature; they endeavor to give their intention its proper effect.

This is the substance of the authorities, on a comprehensive view of the subject; this is the language of Blackstone in his celebrated commentaries, and this is the practice of the courts of justice, from which we have copied our jurisprudence, as well as the models of our own internal judicatories. To apply these general remarks to the particular case under our consideration. - The American prisoners of war, in the power of the enemy, were quartered in the houses of the exiles: they in fact occupied those houses by a military order or command, and are included within the general description of the statute, which, according to the letter, extends to all persons without any exception, who have so occupied or injured such houses. But can we force ourselves to believe, that the legislature could have been so unjust and oppressive as to add to the sufferings of the patriot soldier, consigned, after fighting the battles of his country, to a long captivity, by making him pay for fetters which he had worn in the service of his country, or for want of means, to undergo a second loss of liberty?

That the legislative, judicial, and executive powers of government should be independent of each other, is essential to liberty.

This principle entered deeply into our excellent Constitution, and was one of the inducements to the establishment of the Council of Revision, that the judicial and executive of whom it is composed, might have the means of guarding their respective rights, against the encroachments of the legislature, whether by design, "or by haste or unadvisedness." For this and other purposes, all bills, which have passed the Senate and Assembly, before they become laws, are to be presented to the council for their revisal and consideration; that if it should appear improper to them that any bill should become a law, it may be returned with their objections for further consideration, and become subject to the approbation of two-thirds of the members of each House, before it can be a law.

From this passage of our Constitution, Mr. Attorney seems to regard this determination of the Council of Revision on the law in question,

in the light of a judicial decision, by which this court ought to be guided, for the sake of uniformity in the dispensation of justice. But surely the respect, which we owe to this honorable council, ought not to carry us such lengths; it is not to be supposed, that their assent or objection to a bill can have the force of an adjudication; for what in such a case would be the fate of a law which prevailed against their sentiments? Besides, in the hurry of a session, and especially flagrante bello, they have neither leisure nor means to weigh the extent and consequences of a law whose provisions are general, at least not with that accuracy and solemnity which must be necessary to render their reasons incontrovertible, and their opinions absolute. The institution of this council is sufficiently useful and salutary, without ascribing to their proceedings, effects so extraordinary; nor is it probable, that the high judicial powers themselves, would in the seat of judgment always be precluded, even by their own opinion given in the Council of Revision; for instance, if they had consented to a bill, general in its provision, and in the administration of justice they discovered that, according to the letter, it comprehended cases which rendered its operation unseasonable, mischievous, and contrary to the intention of the legislature, would they not give relief? Surely it cannot be questioned.

Upon the whole, this being a statute is obligatory, and being general in its provisions, collateral matter arises out of the general words, which happens to be unseasonable. The court is therefore bound to conclude, that such a consequence was not foreseen by the legislature, to explain it by equity, and to disregard it in that point only, where it would operate thus unseasonably.

The questions then, whether this statute hath in any respect revoked the law of nations, or is repealed by the definitive treaty of peace, or foreign to the circumstances of the case: neither will happen, nor ought to be apprehended.

There is not a tittle in the treaty to which the statute is repugnant. The amnesty is constructive, and made out by reasoning from the law of nations to the treaty.

The repeal of the law of nations, or any interference with it, could not have been in contemplation, in our opinion, when the legislature passed this statute; and we think ourselves bound to exempt that law from its operation: first, because there is no mention of the law of nations, nor the most remote allusion to it, throughout the whole statute; secondly, because it is a subject of the highest national concern and of too much moment to have been intended to be struck at in silence; and to be controlled implicatively under the generality of the terms of the provision; thirdly, because the provision itself is so indefinite, that without any control it would operate in other cases unreasonably, to the oppression of the innocent, and contrary to humanity; when it is a known maxim" that a statute ought to be so construed, that no man who is innocent be punished or endamaged;" fourthly, because the statute

under our consideration doth not contain even the common non obstante clause, though it is so frequent in our statute book," and it is an established maxim, where two laws are seemingly repugnant, and there be no clause of non obstante in the latter, they shall, if possible, have such construction, that the latter may not repeal the former by implication;" fifthly, because although it is a true rule that posteriores leges prioribus derogant, to use the language of Sir Thomas Powis in the Duchess of Hamilton's Cuse, at the same time it must be remembered, that repeals by implication are disfavored by law, and never allowed of but where the inconsistency and repugnancy are plain, glaring, and unavoidable: for these repeals carry along with them a tacit reflection upon the legislature, that they should ignorantly, and without knowing it, make one Act repugnant to and inconsistent with another; and such repeals have ever been interpreted so as to repeal as little of the precedent law as possible.

The plaintiff's counsel, who themselves argued in favor of this last proposition, adduced several authorities to support it.

Whoever then is clearly exempted from the operation of this statute by the law of nations, this court must take it for granted, could never have been intended to be comprehended within it by the legisla

ture. . . .

We have gone further perhaps into many important subjects, which have been brought into view by this controversy, than was strictly necessary; but it is time that the law of nations and the nature and effects of treaties should be understood: and in the infancy of our republic, every proper opportunity should be embraced to inculcate a sense of national obligation, and a reverence for institutions, on which the tranquillity of mankind, considered as members of different States and communities, so essentially depends.

Besides the maxim interest reipublicæ ut sit finis litium, never applied more forcibly than it now doth to us in our present circumstances; and it is hoped by being thus explicit, we may ease the minds of a multitude of suitors whose causes are depending here under this statute — at all events we shall relieve this court from an unusual weight of judicial examination, which a want of time renders incompatible with our other public and indispensable duties.

Upon the whole, it is the opinion of this court, that the plea of the defendant as to the occupancy of the plaintiff's brew-house and malthouse, between the 28th day of September, 1778, and the last day of April, 1780; and the last plea of the defendant as to the whole of the trespass, charged in the plaintiff's declaration, are insufficient in the law; and that only the plea of the defendant in justification of the occupancy between the last day of April, 1780, and the 17th day of March, 1783, is good and sufficient in the law.

Let judgment be entered accordingly.

1 See Mr. Dawson's introduction for an account of the excitement to which this opinion gave rise. A meeting was called, and an address "To the People of the

TREVETT v. WEEDEN.1

not

applic

SUPERIOR COURT OF JUDICATURE OF RHODE ISLAND. 1786.

UPON the last Monday of September, in the eleventh year of the Independence of the United States, in the city of Newport, and State of Rhode Island, &c., was heard, before the Superior Court of Judicature, Court of Assize, and General Jail-Delivery, a certain information, John Trevett against John Weeden, for refusing to receive the paper bills of this State, in payment for meat sold in market, equivalent to silver or gold; and upon the day following, the court delivered the unanimous opinion of the judges, that the information was not cognizable before them. [Coxe (Jud. Power and Unconst. Legis. 245) adds this: "The following constitutes the whole of the brief extant report of what was said by them: The court adjourned to next morning, upon opening of which, Judge Howell, in a firm, sen

26

States" was issued Nov. 4, 1784, bitterly complaining of the decision. The writers say: "From what has been said we think that no one can doubt of the meaning of the law. It remains to inquire whether a court of judicature can consistently, with our Constitution and laws, adjudge contrary to the plain and obvious meaning of a stat

ute.

That the Mayor's Courts have done so in this case we think is manifest from the aforegoing remarks. That there should be a power vested in courts of judicature, whereby they might control the supreme legislative power, we think is absurd in itself. Such power in courts would be destructive of liberty, and remove all security of property. The design of courts of justice in our government from the very nature of their institution, is to declare laws, not to alter them. Whenever they depart from this design of their institution, they confound legislative and judicial powers. The laws govern where a government is free; and every citizen knows what remedy the laws give him for every injury. But this cannot be the case where courts, if they deem a law to be unreasonable, may set it aside. Here, however plainly the law may be in his favor, he cannot be certain of redress until he has the opinion of the court." This address was signed by Melancton Smith, Thomas Tucker, Peter Riker, Daniel Shaw, Jonathan Lawrence, Adam Gilchrist, Jr., Anthony Rutgers, John Wiley, Peter T. Curtenius. The House of Assembly of the State at about the same time, by a vote of 25 to 15, adopted a preamble and the following resolution: ““ Resolved, that the judgment aforesaid is, in its tendency, subversive of all law and good order, and leads directly to anarchy and confusion; because if a court instituted for the benefit and government of a corporation may take upon them to dispense with and act in direct violation of a plain and known law of the State, all other courts, either superior or inferior, may do the like; and therewith will end all our dear-bought rights and privileges, and legislatures become useless.' It is said," continues the editor, "that Mr. Waddington, alarmed at these manifestations, and at the threatened appeal and writ of error, soon after compromised with Mrs. Rutgers; and the entire subject became matter of history, and, soon after, was entirely forgotten by the great body of those who were most interested in the great political principles which have been involved -even those who had been most active in condemning the action of the court, appear to have thought no more of the subject."

For comments on this case see Coxe, Jud. Power & Unconst. Legis. 223. See also the Symsbury Case, Kirby (Conn.), 444, 447 (1785), and Ib. 452 (1784). — Ed.

1 Pamphlet, by James M. Varnum. Providence: John Carter. 1787. An account

of the case is given in 2 Chandler's Crim Tr. 269. — ED.

2 Providence "Gazette,” Oct. 7, 1786: compare American Museum, vol. 5, p. 36.

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