It is of the essence of Varnum's whole 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. The Revolution had changed only certain parts of the constitution. The legislature of the state was identical with the legislature of the colony, and was not a new legislature put in the place of an old one which had been destroyed. The knowledge of what the constitution of the state was, and the legal vigour and validity thereof were derived from the same source, viz., the custom and usage of the people. This custom and usage of the people began far back in colonial times and extended from one generation to another down to the then present year of 1786. There was no break in the continuity of that custom and usage at the Revolution.*

In Connecticut, it may be injected, a like unwritten constitution existed in a like way. An act had been passed there in 1776, declaring that the old colonial charter of Charles II. should have vigour under independence. That act, however, was not made by any constitutional convention, but by the ordinary legislature. It was the common custom of the people of Connecticut that gave vigour to the colonial charter as part of the constitution of that state.

Although the colonial charter of Rhode Island lost all vigour at the Revolution, as an act of the late sovereign, it was, mutatis mutandis, continued in vigour a part of the unwritten constitution of the new state by the custom and usage of the people and was law by virtue of their custom and usage, as it was formerly law by virtue of the king's prerogative lawfully and rightfully exercised.

The charter had been granted by the king upon the petition of the people. It was conclusive evidence of the intention of the king and of the compact of the people. The powers of the legislature were clearly created and as clearly limited by it. They had power and authority to make laws, provided such laws were not contrary and not repug

Cf. Calder v. Bull, 3 Dallas, 386, and Poor's Charters and Constitutions, under Connecticut.

nant to the laws of England. The laws of England included the common law, Magna Charta, and the trial by jury.*

The people of the state, at the Revolution, might have met in solemn convention in order to annul the old constitution and make a new one by a written instrument. They had not done so, nor any thing like it. Neither had the people entrusted their legislators with the power of altering the constitution. They had continued the ancient constitution, mutatis mutandis, by their unbroken custom. The old legislature was continued with the old constitutional limitations upon its power. The colonial legislature could not have abolished the trial by jury, and therefore the state legislature could not abolish it. The state had a constitution as much as the colony.†

"If we have not a constitution, by what authority doth "our general assembly convene to make laws and levy "taxes? Their appointment by the freemen of the towns, "excluding the idea of a social compact, cannot separately "give them power to make laws compulsory upon the other "towns. They could only meet, in that case, to form a "social compact between the people of the towns. But "they do meet by the appointment of their respective "towns, at such times and places, and in such numbers, "as they have been accustomed to from the beginning. "When met, they make laws and levy taxes, and their "constituents obey those laws, and pay those taxes. Con"sequently 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."‡

The above reflections upon the constitution of Rhode Island are confined to matters of historical law and positive right. Varnum does not, however, speak only of such considerations. As was usual, perhaps unavoidable in the * Varnum, pp. 22, 23.

† Cf. Varnum, pp. 30, 25, 23, cf. 34. Varnum, pp. 25, 26.

eighteenth century, his argument goes into reasoning from an abstract philosophy of law. He quotes freely from Locke and Vattel. With much originality, he adapts their abstract views of infant society and social compacts to the actual facts of the settlement and history of the towns (or townships) of the colony of Rhode Island and the Providence Plantations. Space precludes further disquisition of this portion of the discussion except upon one point. A quoted passage from Vattel holds that the legislature of any state having a constitution can not alter the fundamental constitutional laws, without having in express terms the power to change the same as part of their commission. This passage concludes: "In short, these legislators derive their "power from the constitution; how then can they change "it, without destroying the foundation of their authority." This view of Vattel's as to a constitution of a state in the abstract is deemed by Varnum to support his own view of the concrete constitution of Rhode Island. Both, indeed, regard every act of any legislature made in violation of the constitution of their state to be void because made beyond their commission, mandate or appointment. Vattel maintains that this is so because the legislature can not destroy the constitution without destroying that which is the only foundation of their legislative power or authority. Varnum approves this doctrine as an abstract one, but his pamphlet does not clearly assert it to be true of the concrete constitution of Rhode Island. According to the report of his spoken words he did clearly make such an assertion.* It is of much importance to observe that the philosophic law, which Varnum quotes from Vattel, is identical with the actual law of North Carolina, as laid down by the Superior Court of that state in the case of Bayard v. Singleton in 1787, the next year following. That court held that the legislature of North Carolina could not make a law which altered the constitution of the state, without destroying the foundation of their own legislative authority. The great difference between the cases of Trevett v. Weeden and

* See Providence Gazette and American Museum.

Bayard v. Singleton was that the former arose under an unwritten, and the latter under a written, constitution. Both related to the denial of the trial by jury, as will be seen when the latter case is fully examined.

Varnum's next contention was that it was a judicial question whether or not the legislature had violated the constitutional rights of the people in enacting the law referred to.

As the legislative is the supreme power in government, who "is to judge whether they have violated the constitutional "rights of the people? I answer, their supremacy (consist"ing in the power of making laws, agreeable to their "appointment) is derived from the constitution, is subor"dinate to it, and therefore, whenever they attempt to en"slave the people, and carry their attempts into execution, "the people themselves will judge, as the only resort in the "last stages of oppression. But when they proceed not "farther than merely to enact what they may call laws, and "refer those to the judiciary courts for determination, then, "(in the discharge of the great trust reposed in them, and "to prevent the horrors of civil war, as in the present case,) "the judges can, and we trust Your Honors will, decide "upon them."*

[That is to say, when the legislature enact a law abolishing the constitutional rights of the people, prevent all judicial action concerning it, and execute the act themselves, the people must then submit, or resort to civil war as the only remedy. But when the legislature enact such a law and do not attempt to execute it themselves, but direct the judiciary to carry it into execution, the duty of the judges is this: they must examine such legislation and determine whether it deprives the people of their constitutional rights or not, and if it do so, then, they must say so, and hold it to be therefore no law of the land. If the judges do otherwise, they unite with the legislature in compelling the people to resort to civil war as the only remedy left. If, however, the judges furnish a peaceful remedy to the people for their wrongs, they are not acting extrajudicially, but judicially.

* Varnum, p. 26.

It is a fundamental object in establishing courts of justice and civil society to prevent every kind of war except foreign war, by furnishing judicial remedies for legal wrongs.]

In a despotism the judges are not independent, according to Varnum. There all officials are merely ministerial. Where political freedom exists, the judges are free and independent administrators of justice. With such judges only can a real judiciary exist.*

The power which Varnum asked the court to exercise was, he maintained, a judicial one. It was not an extrajudicial one. The judges would assume no legislative power in exercising it. Its rightfulness is based Its rightfulness is based upon the separation, not upon the confusion, of the powers of government. In a tyranny, all the public powers are lodged together in one hand, whether it be the government of a single tyrant, or a body of tyrants, as the legislature of Rhode Island would be, if that body possessed judicial, executive and legislative powers combined. "The true distinction "lies in this, that the legislative have the uncontrollable "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 judges had sworn an oath of office to execute the laws and also an oath of allegiance to the state. Rhode Island became a state in order to support its fundamental constitutional laws. The trial by jury is a fundamental constitutional law and therefore is binding upon the judges by a double oath. There were no laws of the general assembly distinct from the laws of the state. Laws made by the general assembly under the powers thereof derived from the constitution "become the laws of the land and as such "the court is sworn to execute them. But if the general "assembly attempt to make laws contrary hereunto, the "court can not receive them." If the judges should do so,